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03.24.15

Benoît Battistelli’s EPO is Under Attack From French Politicians Yet Again

Posted in Europe, Patents at 6:36 am by Dr. Roy Schestowitz

French flag

Summary: More EPO interventions — this time from France — target Benoît Battistelli over his abuses and take it up to Eurocrats for political actions

Benoît Battistelli is French and he is well-connected not only within the EPO's management but also in Ecole Nationale d’Administration at his home country (never mind INPI in particular), yet it doesn’t mean that he is immune to criticism from French politicians.

Several months ago the French Senator Jean-Yves Leconte wrote a letter to the French Ministry in charge of the INPI [1, 2].

A new kind of intervention from Philip Cordery and Pierre-Yves Le Borgn’ has been flagged to us. There are two separate actions. See the PDFs below (provided to us anonymously):

  1. PYLB-EPO-CRISIS (in French with English translation, German translation, and Dutch translation)
  2. CORDERY-ILO (in French with English translation and German translation)
  3. CORDERY-EU (in French with translations)
  4. CORDERY-EPO (in French with translations)

These 4 PDFs show that opposition to the scandalous tyranny of Battistelli keeps growing. Here is the English translation of (1) above:

European Patent Office: When will the Crisis end?

English translation

4 March 2015

It will soon be a year since I posted on my site (click here) the numerous initiatives I had come up with in response to the requests and appeals from a substantial number of members of the European Patent Office relating to the disturbing deterioration of social relationships within their organization. I have not expressed myself more elaborately in public since then, but I have nevertheless been keeping in touch by mails, telephone conferences, meetings, and other visits to the French Government as well as the presidency of the EPO, with the aim of contributing to the search for a solution which will bring an end to the crisis which is besetting the organization. Last month, when I went to Munich, I had a meeting lasting close on two hours face to face with the President Benoît Battistelli, whom I would like to thank. I also met with a number of members of the staff, at their request, together or individually. These persons, as well as those who have written to me, have told me of the risk they were taking in communicating with me, and immediately asked me not to reveal their identity for fear of disciplinary sanctions against them.

I cannot conceive, and cannot accept, that communicating with a member of parliament could result in threats, sanctions, and even a wrecked career. Behind the member of staff I see a citizen. All this is symptomatic, unfortunately, of a deleterious social climate. I am familiar with the commercial world, having spent more than 20 years of my life in it. I know that social relations can sometimes be difficult. As well as that, I also know that getting out of a crisis requires from all parties concerned a common willingness to understand the difficulties being encountered, and to find together the means to get back on track. The key is there. I am convinced that an organization operating in an atmosphere which has deteriorated to this extent, characterized by fear and suspicion, and without any prospects other than one bloc against another, in the hope that one of them will end up giving way, is an organization which is doomed not to achieve its aims. This prospect cannot be allowed to be the future of the EPO, of which the role for the European economy, innovation, and employment, is essential, now more than ever.

On my return from Munich I contacted the Minister of the Economy, Emmanuel Macron, and told him how I felt, as well as presenting a series of proposals. I had not originally envisaged making a public statement. It was the ruling by the Court of Appeal at The Hague of 17 February last, and the developments which followed, which caused me to change my mind. It is in fact unknown, or almost so, that the immunity of an international organization should be impugned by a court. How can one not be shaken when a court as important and prestigious as this takes the view that the failure of the system for the resolution of conflicts within the EPO is interpreted as an unacceptable infringement of the fundamental rights enshrined in the European Convention on Human Rights, and therefore leading to the suspension of the immunity of the organization? Such a judgment would merit, at the very least, with regard both to its expectations and its consequences, a debate between the Member States within the Administrative Council. Nothing of the kind. I was amazed to learn that the President of the EPO had announced to the staff that the organization would not be submitting to the ruling by the Court.

It is time for the Member States to get back in control. The legitimacy of an international organization, and the EPO is no exception, rests on them. When one has lost immunity from jurisdiction, it is futile to invoke despairingly immunity from enforcement. The EPO has been suffering for years from a lack of governance, attributable to the increasing lack of interest by the Member States in any relevant subject, more or less, relating to the separation of power from the elementary rules of checks and balances, in particular with regard to the matter of internal monitoring and control. It has been 15 years since the last meeting of the inter-ministerial conference which is provided for in the statutes of the organization. The present situation means that the holding of such a meeting in the near future is a matter of urgency. That notwithstanding, it should be possible for such a meeting to be held every two years. The conference would establish the framework of action of the EPO, and confer control on the Administrative Council. The power of the major States which are the purveyors of patents should also be enhanced, breaking with the rule of one State – one vote, and moving towards a weighting arrangement of the votes. And in order for the Administrative Council to play its role in a truly active way, a system of incompatibility should be put in place such that the exercise of the Presidency of the Administrative Council becomes incompatible with candidature for the Presidency of the EPO.

To emerge from the present crisis, an independent social audit is required. It is up to the Member States to define the scope, and to assess the content of the decisions which it would be appropriate to adopt in accordance with the recommendations of the auditors. The future of the EPO depends upon this. This is not a matter of personages, or of a referendum on the pertinence of social democracy. An organization, in order to survive, needs concord, dialogue, and decisions agreed, shared, and accepted. Such are, pending the meeting of the Administrative Council of the EPO on 25-26 March, the positions and suggestions which I, as a member of parliament, am taking the liberty of drawing to the attention of the Government of France.

See the original PDF for the original French version as well as the German translation and Dutch translation.

The next file contains an English translation of the letter from Philip Cordery. Here it is in full and in English:

National Assembly

French Republic
Liberty – Equality – Fraternity

Philip Cordery
Deputy for the French of Benelux
Secretary of the Commission for European Affairs
Member of the Commission for Social Affairs
President of the Study Group for Cross-border Zones and Workers

Paris, 20 February 2015

Ref.: PC/AF/61

To the Director General, Dear Guy,

I am writing to draw your attention to the extremely deleterious social climate which has prevailed for some months at the European Patent Office (EPO).

This inter-governmental organization has more than 7000 personnel, recruited from 38 Member States, who carry out remarkable work and make a major contribution to innovation, competitiveness, and economic growth in Europe.

This excellent success is, however, being undermined by the social policy being applied within the organization. In effect, since 2012 the management body has, little by little, been introducing a large number of repressive measures which do not respect the fundamental rights of the employees

I was alerted to this matter by the trade union of the European Patent Office and by a number of members of staff, who expressly asked me to preserve their anonymity for fear of reprisals. A number of press articles have likewise been reporting on the situation in the local newspapers.

The facts speak for themselves. The exercise of the right to strike has been blocked, and threats of disciplinary sanctions have been abusively used to limit the rights of expression of the personnel.

The union has been muzzled, and disciplinary sanctions have been inflicted on close to a dozen union representatives. Certain employees have also been subjected to suspension and reduction in status for abusive and fallacious reasons.
As well as this, there have been three deplorable cases of suicide in the past 24 months, one at the workplace during working hours.

The management of the EPO is diverting the immunity of the international organization from its main purpose, and is using it as a lead weight, to crush without moral or legal consideration the fundamental rights of the employees, who are, as a result, particularly vulnerable, since they do not enjoy any national judicial protection in matters of labour law.

This social situation incurs a major risk in terms of affecting the role and the very effectiveness itself of the institution in its mission of public service, in Europe and internationally.

I would therefore be grateful if you, in your capacity of Director General of the International Labour Organization, would take action in order to facilitate a return to social dialogue and, for example, press for an external examination of the governance of the EPO.

I take the liberty of emphasising the urgency of the situation, given that the working conditions have become a matter of great concern to the vast majority of the 7000 employees of the EPO.

I am at your disposal to exchange views on the matter, and remain,

With best regards

Philip Cordery

Mr. Guy Ryder
Director General of the International Labour Organization
International Labour Bureau
4, Route des Morillons
CH-1211 Geneva 22
Switzerland

More translations and original text are in the PDF.

Another letter from Cordery addresses a Commissioner at the European Union and says:

National Assembly

French Republic
Liberty – Equality – Fraternity

Philip Cordery
Deputy for the French of Benelux
Secretary of the Commission for European Affairs
Member of the Commission for Social Affairs
President of the Study Group for Cross-border Zones and Workers

Paris, 20 February 2015

Ref.: PC/AF/62

I am writing to draw your attention to the extremely deleterious social climate which has prevailed for some months at the European Patent Office (EPO), the executive body of the European Patent Organization, the structural elements of which are based in The Hague, Brussels, Vienna, Munich, and Berlin.

I have been approached by the trade union of the European Patent Office and by a number of members of staff, who expressly asked me to preserve their anonymity for fear of reprisals. A number of press articles have likewise been reporting on the situation in the local newspapers.

Since 2012 the management of the EPO, under the aegis of the President, has been instituting a system of management which is authoritarian and repressive.
Communications from the union and the exercise of the right to strike have been drastically curtailed. Pressure, threats, and disciplinary procedures have been abusively used to restrain the expression of opinions by the staff and the union representatives. Certain employees have likewise been subjected to suspension and reduction in status for abusive and fallacious reasons.
As well as this, three cases of suicide by staff members of the EPO have occurred in the last 18 months, one at The Hague at the workplace and during working hours.

The majority of the measures taken by the management do not respect the letter of European law, which is totally unacceptable for an international organization based on the territory of the European Union.

Moreover, the 7000 staff members who work within the intergovernmental organization are particularly vulnerable, since they do not enjoy any national judicial protection in matters of labour law.

This social situation incurs a major risk in terms of affecting the role and the very effectiveness itself of the institution in its mission of public service, in Europe and internationally. The role of the EPO is preponderant within the framework of the reform of the unitary patent being conducted by the Commission, as well as in the context of innovation, competitiveness, and economic growth in Europe.

I would therefore ask you, in your capacity of European Commissioner, to intervene with the management of the EPO, to remind them of their legal and moral obligations to act with full respecting of European labour law.

I am at your disposal to exchange views on the matter, and remain,

With best regards

Philip Cordery

Ms. Elzbieta Bienkowska
European Commissioner for the Internal Market, Industry, Entrepreneurship and SME’s
European Commission
Rue de la Loi 200
1049 Brussels
Belgium

CC Ms. Margrethe Vestager
European Commissioner for Competition
European Commission
Rue de la Loi 200
1049 Brussels
Belgium

The German translation and original French text are in the PDF.

Finally, here is the press release targeting the EPO itself:

National Assembly

Press Release – 4 March 2015

Philip Cordery
Deputy for the French of Benelux
Secretary of the Commission for European Affairs
Member of the Commission for Social Affairs
President of the Study Group for Cross-border Zones and Workers

Antisocial policy of the EPO condemned by Court at The Hague

The European Patent Office (EPO) has been taken to court in the Netherlands by the EPO union, which is charging the Office with having introduced repressive social measures which contravene the fundamental rights of the staff. The Court of Appeal at The Hague, in its judgment of 17 February 2015, held the view that the rights of the union have been infringed, and has therefore ordered the EPO to amend its internal regulations.

Philip Cordery, Deputy for the French of Benelux, is pleased with the court judgment, which shows that the managerial policy adopted by the EPO directorate constitutes a genuine repression of union rights and is contrary to the laws in force in the Netherlands. The Hague Court in effect ruled that the procedures are illegal which relate to the exercise of the right to strike, and the conditions limiting the nature and duration of strikes, and has ordered that these be suspended immediately. The EPO is likewise required to guarantee union representatives free access to the EPO electronic messaging system, and no longer to issue threats of disciplinary measures for the sending of general communications to EPO staff. Finally, the Court has ordered the EPO to admit the union to collective negotiations.

Once again, the President has distinguished himself by rejecting a court decision from a democratic State, on the pretext that this would be contrary to the principle of immunity which the EPO enjoys. It is now a matter of urgency for the management to realise that the EPO cannot be an area where law does not prevail, and that it must respect international working standards and the European Charter on fundamental rights. It is in this spirit that Philip Cordery has recently called upon the Director General of the ILO, Guy Ryder, and the European Commissioner Elzbieta Bienkowska, to intervene.

The Deputy reiterates his support for the unions and for all the personnel at the EPO, and calls on the management to respect the decisions pronounced by the court, with the aim of re-establishing a calm social climate and restoring confidence among all the staff members.

Press contact:
Laure Delcroix
presse@philipcordery.fr
Mobile: +33 7 86 02 77 29

There is a lot more in the original PDF and there is a big load of material relating to the Dutch court which we shall cover in the future along with English translations of original texts (in Dutch).

MEPs from many countries are now openly complaining about the EPO and putting the feet of management to the fire. So the momentum is there and we do, by all means, expect justice to be attained and for Benoît Battistelli to be ousted (unless he pro-actively steps down). We are now coming to the point where Battistelli is more afraid of staff rather than the staff being afraid of Battistelli. It’s a tipping point. See the new article titled “European patent office under fire over ‘reign of terror’”; it was published in a major news site two days ago.

The next post will delve deeper into broader responses to Battistelli’s abuses.

03.23.15

Politics of Blackmail at the EPO

Posted in Europe, Patents at 5:00 am by Dr. Roy Schestowitz

The image below circulates around the EPO these days

EPOnia

Summary: Comments serve to highlight the role of bribes (or contrariwise blackmail), as allegedly exercised by the current management of the European Patent Office

THE European Patent Office (EPO) has lured many powerful people, such as politicians, into probe of its scandalous behaviour. Don’t expect the managers of the EPO to stay there for much longer.

Interesting comments on IPKat help expose a high degree of corruption and one comment reveals something which is worth highlighting in a standalone article.

“The following comment,” said a source of ours about this comment, “recently posted on the IPKat site (purporting to be from a Director in the Directorate for patent examination i.e. DG1) appears to refer to how Battistelli “buys” support from the AC delegations.”

“DG1Director” (no way to confirm is this is indeed the DG1 Director) said: “What do you mean the control the president has over the members of the AC by whatever means ? The means are obvious: You don`t bite the hand that feeds you. The president controls the support to the national offices. No support for the president means no support for your office. Just ask the Polish delegate what she was told after the latest AC meeting….”

We asked for an interpretation of this and a source told us this: “We have no idea what exactly what was said to the Polish delegation but it would seem that they were given to understand that if they didn’t support the President they shouldn’t expect any “goodies” from the EPO’s treasure chest for “cooperation” projects.”

In the mean time, based on this recent article from IPKat, the Administrative Council is planning to chop off members of the Boards of Appeal. To quote Merpel: “Now, it seems clear that the discipline according to Article 11 must stop short of “removal” according to Article 23, but there is disagreement between Merpel, who believes that this “removal” means permanent removal (so that a wide range of sanctions including suspension would be envisaged under Article 11), and a commenter who thinks that “removal” under Article 23 includes suspension, so that the Article 11 disciplinary provisions (which can be proposed by the President and do not need a proposal from the Enlarged Board of Appeal) must be rather limited in application.”

Benoît Battistelli has been dying to have total authority to just toss out everyone who is not loyal to him, even if that’s against the rules. In the coming day, ahead of important Administrative Council meetings, we are planning to speed up publication of Battistelli’s scandals. These Napoleonic (as in Napoleonic complex) people are truly destroying the EPO and the sooner they are tossed out, the better off EPO staff will be.

Benoît Battistelli’s EPO Comes Under Attack From the British

Posted in Europe, Patents at 4:40 am by Dr. Roy Schestowitz

EPO “breaches human rights and claims immunity,” says MEP

British flag

Summary: A British MEP criticises Battistelli and the management of the European Patent Office (EPO) while Baroness Lucy Neville-Rolfe, UK Minister for Intellectual Property, gets closer to Battistelli in a tactless effort to improve relations

THE EPO has finally tilted itself into a death spiral because not only did it break the rules but it also suppressed workers who protested over it. It’s a tyrant’s suicidal recipe. There was a protest targeting the British Consulate one month ago (derailed by threats from Battistelli) and a response from EPO’s management was published on Friday although it was also commented on (or annotated) by Merpel or her colleagues, in order to address lies and distortion of facts in the statement. We really appreciate all that the British blog IPKat has been doing to raise awareness of the situation inside the EPO.

“After the Dutch socialists,” wrote a source of ours, “now it’s the turn of the UKIP to have a go at Battistelli in the European Parliament.” (a lot more is coming from the Dutch, but we are still catching up with a lot of documents and reports)

James Carver, an MEP from the UKIP party (this is no endorsement from us), spoke out on these issues and there is a video in there which we embed below (no browser cookies):

British blog IPKat has meanwhile chosen a reference to Chamberlain when it published an article titled “‘Peace for our time’, or another wasted trip to Munich?” (implying/insinuating that Benoît Battistelli is like Adolf Hitler).

This article links to EPO public relations and states the following:

From the European Patent Office yesterday came the news item that is reproduced in its entirety below, both for the benefit of those readers who may not have seen it and for the benefit of those readers who, having seen it, have not yet emailed it to this moggy on the basis that it might have escaped her attention. The subject matter is Wednesday’s visit of the UK Minister for Intellectual Property, Baroness Lucy Neville-Rolfe, to the EPO.

This moggy is aware that a lot of readers had pinned their hopes on the Baroness being able to use this visit as an opportunity for her to express her Government’s concern at the level of disquiet — a disquiet which is not rumoured to exist but which is clearly in evidence — at both the governance of the EPO and the anxieties of its staff members, many of whom are rumoured to be British. Failing that, some hoped that the Baroness would at least take the opportunity to speak with, or just listen to, some of the union and staff representatives who have no clear route to take in their long and arduous journey to seek redress for what they plainly perceive, with some reason, to be serious grievances.

Others have been less optimistic. With the UK Government’s five-year term hurtling towards its close and with Parliamentary business being speedily wound up ahead of the Easter break and the following General Election, this was not an opportunity for a visiting Minister to do anything more significant than pose for photographs, shake hands and, when called upon, to kiss the occasional baby. In any event, like most ministerial visits, this one would have been scheduled months if not years ahead of its taking place so there was no reason to suspect that it was in any way connected with the current turmoil — for that is what it appears to be — in the EPO.

Watch Neville-Rolfe posing for photos with the tyrant (under the caption “UK Minister for Intellectual Property, Baroness Lucy Neville-Rolfe and EPO President Benoît Battistelli”).

It is worth noting that IPKat, which is based in a country where libel law is pretty bad (often extending to liability for the content of comments), is changing the policy of comments, maybe due to the threats regarding the site being “biased”, as recent articles serve to suggest. To quote one of many reminders at the bottom of articles about the EPO:

REMINDER: in respect of all EPO-related blogposts, no comment will be posted if it is merely ascribed to “Anonymous”. Any reader wishing to conceal his or her identity must adopt a pseudonym (which should not be obscene and should not be the name, or the mis-spelling of the name, of a real person). The pseudonym need not be an actual login name, as long as it is stated clearly at the beginning and/or end of the comment itself. This way, it will be easier for people who post later comments to identify and remember the earlier comment-poster and to recall the discussion string. Where, as has already happened on occasion, a string carries over from one blogpost to a later one on the same or a related subject, readers will be encouraged to use the same pseudonym for the sake of continuity.

A couple of readers have forgotten this rule. The blog team have assigned pseudonyms for their posts rather than lose their comments completely — but it’s better to choose your own pseudonym, since the blog team risk ascribing two or more pseudonyms to the same reader.

We sure hope that IPKat won’t be intimidated into silencing sources, especially those who pass information through blog comments. The EPO’s management sure is upset at IPKat, so it will do whatever it can to suppress publication.

The Royal Norwegian Department of Labour on the Right of European Patent Office (EPO) Workers to Strike

Posted in Europe, Patents at 4:07 am by Dr. Roy Schestowitz

Norwegian flag

Summary: The role of bureaucrats from Norway in defending (or not) the rights of EPO workers — rights that the EPO’s management is actively trying to deny and punish for

TECHRIGHTS has received a pointer to an interesting comment which appeared on the IPKat blog a few weeks ago.

“The comment,” we were told, “includes a link to a copy of a letter from the Norwegian Department of Labour which gives the opinion of the Ministry about the proposed Strike Regulations (i.e. the ones which were declared to be in breach of fundamental principles of international law by the Dutch Appeal Court).” (we will cover the Dutch situation some other day)

“As can be seen from the letter,” said our source, “the opinion of the Department of Labour about the proposal was basically negative.

“We are currently trying to find out how the Norwegian delegation voted on that proposal.

“Similar information could probably be obtained from the Ministries of other EPO member states using freedom of information legislation.”

Here is the original document [PDF] and a translation. The text is copied below.


From The Royal Norwegian Department of Labour
To the Department of Industry and Commerce

Your ref 13/1395    Our ref 13/2220    Date 26.06.2013

Request for input concerning proposals to regulate the right to strike at the EPO – The European Patent Organisation

We refer to the inquiry of 24 June [2013] concerning the above.

The right to strike is regulated in several international instruments ratified by Norway, inter alia ILO Convention No. 87 and No. 98 on the right to self-organise and engage in collective bargaining, and the Council of Europe Social Charter. The right to strike is seen as a natural and necessary consequence of the right to organize and engage in collective bargaining. Strikes are however a powerful tool and the right is not absolute. The right to strike and limitations of the right to strike have evolved over time and are defined by the ILO and the Council of
Europe expert committees. The Department of Labour is not aware of whether international organizations have regulated the right to strike more in detail. From our starting point, we do not believe this is especially common because it intervenes in an area that naturally falls within the negotiation area of employers and workers organizations. The Department of Labour is therefore skeptical about a solution with an administrative regulation and about the content that, at a quick glance, seems extremely dubious in respect of its compliance with applicable international conventions.

Our suggestion would be that Norway request more info concerning how the right to strike is formulated in other organizations, and that the EPO takes no position on the proposal at the present time. A natural partner for the EPO
administration would be the ILO office in Geneva. With greetings,

Bodil Stueflaten                 Gundla Kvam
Acting Division Director       Technical Director


Room is being left here for interpretation.

03.21.15

Microsoft Hates Linux – Part II – Patent Lawsuits Against Android/Linux Still Going On, New Ones Filed

Posted in GNU/Linux, Google, Microsoft, Patents at 5:34 am by Dr. Roy Schestowitz

‘Loving’ Linux a little too much?

Compassion

Summary: Microsoft and Intellectual Ventures are suing Android companies using software patents while some Android vendors settle by becoming slaves of Microsoft

MICROSOFT hates GNU/Linux with a very great passion. Its actions speak volumes and it’s easy to see the motivation given that no operating system threatens Microsoft’s very existence like GNU/Linux does. Microsoft needs a ubiquitous Windows as the common carrier, so it responds to the threat of GNU/Linux not by making better products but by undermining GNU/Linux by means of bullying, extortion, bribes, spurious litigation etc. Therein lies the issue.

Weeks ago we wrote that Microsoft was reportedly using patent blackmail to pressure Samsung into becoming a Microsoft peon and later we updated our article to state that Mary Jo Foley had been distorting or making up ‘facts’ about Microsoft’s patent attacks on Android/Linux. Well, Mary Jo Foley (Microsoft’s mouth) now reveals that it’s true that Microsoft blackmailed Samsung into a “Microsoft Android” sort of programme (Android base which runs Microsoft apps and gives users’ data to Microsoft). Mary Jo Foley’s headline, however, is marketing nonsense (for Microsoft). Her headline should say “Samsung Galaxy S6 offers more proof Microsoft is a blackmail and extortion company”. There are other Microsoft-friendly sources (like Mary Jo Foley) confirming this. But wait, it gets worse!

As the Microsoft-paid lobbyist and patent propagandist shows in his latest Android-hostile posts, Microsoft is now suing yet another company for using Android. Microsoft even pursues a ban on Android devices:

Microsoft has asked a court in Seattle to ban Kyocera’s DuraForce, Hydro and Brigadier lines of cellular phones in the U.S., alleging that they infringed seven Microsoft patents.

The software giant has in its complaint in the U.S. District Court for the Western District of Washington charged that some Kyocera phone features that come from its use of the Android operating system infringe its patents.

Wow. Microsoft sure loves Linux, eh?

Those two companies made a patent deal several years ago (with impact on Android), so this is how Microsoft treats its ‘partners’.

One article stated that “Microsoft may be taking some steps to make nice with the Android world, but the company is still willing to pick fights when its royalty payments are at stake. The Windows maker has sued Kyocera in the US over claims that Android phones like the Brigadier and Hydro series violate seven patents on features like location tracking and messaging.”

Only Microsoft boosters would foolishly state that Microsoft is being “nice” towards Android. Trying to abduct and derail it is bad; there’s nothing nice about it. In the Microsoft lawsuit against Kyocera notice that these are software patents, not hardware patents. Hence, Microsoft is still a corrupt bullies’ den, where Horacio and fellow patent aggressors get promoted while others get demoted or ousted. This is where Microsoft is heading strategically! Will settle if Kyocera notice convert to “Microsoft Android” as Samsung did? Well, one sure thing is that Microsoft is still an extortion company. It sues Linux users through vendors, passing liabilities to users. Will it settle if the users are forcibly converted to “Microsoft Android”? How is that not extortion?

The Kyocera news (lawsuit and effort to ban) ought to wake up all the fools (but not corruptible 'journalists') who say that Microsoft loves Linux.

An additional report by Joe Mullin, who tends to focus on patent trolls (for more than half a decade now), says that “Microsoft claims Kyocera infringes its patents with three of Kyocera’s lower-cost Android phones. The accused models include the Duraforce, Hydro, and Brigadier.”

Microsoft is still operating more or less like a patent troll. Watch how it behaves. Watch the strategy. No difference, except the size/scale of the troll.

Turning back again to the Microsoft booster from The Register (Microsoft Gavin, formerly a colleague of Mary Jo Foley), we sure see that Microsoft continues blackmail and extortion against GNU/Linux using software patents. This is based on a conversation with the OIN’s CEO, dated March third (shortly before the Kyocera news). The article titled “Microsoft to Android OEMs: ‘Show me the money’” says:

Microsoft has reserved the right to nail firms making Android devices running its Office suit for possible Windows patent infringements.

The giant has decided against signing a licence with Open Invention Network (OIN), a group of 1,300 companies dedicated to defending Linux against patent suits.

Signing an OIN licence could have stopped the practice of Microsoft accusing Android and other Linux makers of infringing on its Windows patents and signing them up to IP licensing deals.

The decision followed a meeting with OIN in December, where the subject of Microsoft signing an OIN licence was apparently discussed.

OIN veteran chief executive Keith Bergelt met Microsoft’s then-new chief of patent licensing and intellectual property, Eric Andersen.

Bergelt told The Reg Monday his meeting had been a courtesy call to discuss differences and that he’d also held such a meeting with Andersen’s predecessor, Horacio Gutierrez.

Proceedings were “constructive”, Bergelt said, but any hopes that Andersen’s appointment heralded a shift in the giant’s shakedown of Linux device makers and software firms were dashed shortly after, when the OIN chief followed up.

This ought to remind us how Microsoft views Linux and Android. There is no love there at all. Here is how Microsoft’s longtime mouthpiece Todd Bishop framed extortion against Linux. Very shallow. Other popular sites offered equally shallow commentary. It’s virtually useless. They just parrot two PR departments and call that “journalism”.

Perhaps Microsoft loves Linux too much. That’s why Microsoft is suing Linux so often. Perhaps. Make believe!

Making matters even worse, Microsoft can be seen as suing Android also by proxy. Joe Mullin reveals that the Bill Gates- and Microsoft-funded troll, the world’s biggest patent troll, is now attacking Android/Linux at the core (Motorola/Google) with software patents, yet again (it’s not the first time).

As Mullin put it: “Patent-holding giant Intellectual Ventures (IV) began enforcing some of its massive stash of patents with lawsuits in 2010. But its first case, against Motorola Mobility, ended in a mistrial last year when a jury couldn’t agree on the outcome.”

Patent Troll Tracker mentioned this troll a week and a half ago, asking: “Do you mean to tell me that the life sciences industry sees Intellectual Ventures and IPNav as patent trolls? Will wonders never cease.”

Intellectual Ventures is not just another patent troll, it is tool of Microsoft and Bill Gates. They are almost inseparable and they are all exceptionally abusive.

Perhaps we’re just wrong though. Perhaps Microsoft just can’t help ‘loving’ Linux — so much that this month alone it attacks it with software from multiple angles. Or perhaps Microsoft’s Mr. “loves Linux” Nadella is a PR fraud whose role is to play dumb while Bill, Steve, Horacio and their patent trolls attack Linux (he pretends to have nothing to do with it, that’s the likely arrangement).

03.19.15

How the European Patent Office (Management) is Spying on Its Very Own Staff

Posted in Europe, Patents at 5:14 am by Dr. Roy Schestowitz

Summary: EPO surveillance explained by another source, revealing a connection to Blue Coat, the notorious firm that performs surveillance on behalf of private clients

YESTERDAY we published an unconfirmed report about how the EPO conducts surveillance on staff, which has increasingly turned against the corrupt management. We have since been contacted by more sources, some of which reinforce what we wrote but some refute it. In the interest of accuracy, here is another explanation of how the EPO conducts its notorious surveillance. It has been no secret that the EPO spies on its staff, but some allege that it happens even outside of the workplace.

“The EPO monitors all electronic communications,” said one source, “but the suggestion that traffic may be routed through Moscow is rather fanciful, as they wouldn’t need Putin’s help at all.

“The EPOrg acquired a large B-address block in the 1990s, at the time when IP address were cheap and plentiful, with 65536 endpoints of the form 145.64.xx.xx. These are normally routed either to The Hague or Munich. EPO users are thus rather easy to spot in server log files. (Many EPO online services such as Espacenet now use Amazon web services as a front end, but that’s another story).

“Since a few years, web access from within the EPO is preceded in a flash by another one from 8.28.16.254 (US Pennsylvania), which belongs to an infamous US company called Blue Coat.” See the RSF report for more information. The EPO is acting not much more ethically than the BND or the NSA now. To quote RSF, “American Company Blue Coat, specialized in online security, is best known for its Internet censorship equipment. This equipment also allows for the supervision of journalists, netizens and their sources. Its censorship devices use Deep Packet Inspection, a technology employed by many western Internet Service Providers to manage network traffic and suppress unwanted connections.”

“I have a server with some documents occasionally accessed from the EPO,” said our source, “and I started seeing these weird accessions in my log files. A telltale signature of BlueCoat is the dated browser signature, which is “Mozilla 4.0″, usually followed by garbage or obsolete browser IDs.

“It has been no secret that the EPO spies on its staff, but some allege that it happens even outside of the workplace.”“I have also seen strange accesses to the same documents from other continents which seem to correlate with BlueCoat probes, but even though the coincidences are troubling I can’t quite see the connection or the use of these transfers.

“Try giving a look at your own Techrights.org or schestowitz.com log files.

“You can also perform traceroute to an EPO address, and see where it goes through. My own test do not show anything suspicious, but I don’t live in Russia.”

Curiously enough, one source of DDOS against Techrights.org has been looking like this (from less than one minute ago):

10.0.2.11 – - [19/Mar/2015:02:47:01 -0700] “GET /2011/12/ HTTP/1.1″ 200 148164 “-” “Mozilla/4.0 (compatible;)”
10.0.2.11 – - [19/Mar/2015:02:47:00 -0700] “GET /2013/11/ HTTP/1.1″ 200 136439 “-” “Mozilla/4.0 (compatible;)”

These requests basically hit the site almost every second, demanding about 8 aggregated articles (very greedy) at an alarmingly high pace, thus inducing very high load on the server. In addition to that, there are many cracking attempts (several per second, with increase at times of important releases about EPO). As every systems administrator ought to know (I do this also for a living, as part of my daytime job), determining the source of a DDOS attacks of cracking is very hard, especially if one pursues 100% certainty and has no privileged access to routers (like governments have). Let’s leave it all an open question.

03.18.15

Translation of Full Judgment Against Željko Topić in Croatian Defamation Case Over Bribery (Mercedes/Audi) and More

Posted in Europe, Patents at 2:48 pm by Dr. Roy Schestowitz

Judge Marijan Bertalanič
Judge Marijan Bertalanič, photo from vecernji.hr

Summary: The full ruling on Željko Topić’s SLAPP-esque case backfires on Topić as it helps establish as facts many of the allegations against him, e.g. that he is a liar

EARLIER this year we covered the decision in a case that Željko Topić, currently Vice-President at the EPO, had lost (Topić faces many criminal charges in his home country). We are gratified to finally have the full decision in Croatian [PDF] and in English [PDF].

Below is the full English translation of the Judgment in this recent Topić defamation case, which covers many things including allegations of bribery:

Municipal Criminal Court of Zagreb
Case number 7. K-26/11

Non-certified English translation

Judgment of
26 January 2015

Abbreviations:

SIPO – State Intellectual Property Office of the Republic of Croatia.
[Croatian: DZIV – Državni zavod za intelektualno vlasništvo]

CC – Criminal Code of the Republic of Croatia.
[Croatian: KZ – Kazneni Zakon]

CPA – Criminal Procedure Act of the Republic of Croatia.
[Croatian: ZKP – Zakon o Kaznenom Postupku]


Case number: 7. K-26/11

REPUBLIC OF CROATIA
Municipal Criminal Court of Zagreb
Ilica – Selska. Ilica 207

IN THE NAME OF THE REPUBLIC OF CROATIA

JUDGMENT

The Municipal Criminal Court of Zagreb under judge Marijan Bertalanič as the sole judge, with the court registrar Jasminka Popović, in a criminal complaint against the defendant Vesna Stilin concerning charges under Art. 199, par. 2 and Art. 200 par. 2 of the Criminal Code of 1997 (CC/ 97), pursuant to a private prosecution filed by Željko Topić on 4.2.2011, amended by the submission of 28.04.2014, and following a hearing in the presence of the private plaintiff Željko Topić accompanied by his legal representative, attorney Janjko Grlić and the accused Vesna Stilin accompanied by her defense counsel, attorney Jadranka Sloković, on 26 January 2015,

rules that

Pursuant to Art. 453 par. 1 of the Criminal Procedure Act of 2008 (CPA/08):
The accused STILIN Vesna, the daughter of Milan and Ruzica r. Bekavac, born 21.4.1954 in Zagreb, resident at Biokovske stube 4, a Croatian citizen, having a graduate degree in legal studies (LL.B.), married, no children, no criminal record,

IS ACQUITTED OF THE CHARGES

according to which [it was alleged that]:

1. On 22 November 2010 in the letter sent to the Croatian Government, the Prime Minister Jadranka Kosor, which was also sent to the Croatian Parliament (deputy Bianca Matković) for information, as well as to the Minister of Economy, Labor and Entrepreneurship, the Minister of Science, Education and Sports, the Minister of Administration, the Minister of Foreign Affairs and European Integration, the Minister of Culture and the Minister of Finance and Miljenko Pavlaković in HEP, in order to harm the reputation and honor of the private plaintiff by making false statements about him, she stated among other things the following:

- “Due to the manner in which Topić ignored the aforementioned problems, the writers have suffered financial damage because they should have been receiving compensation for the lending of their books in public libraries for at least the past two years.”

- ” Željko Topić bought his second term as the Director of the State Intellectual Property Office by paying approximately 500,000.00 HRK to the Ministry of Education and Sports (MZOS) during the period of over two years (from May 2007, when the agreement in question was signed, until July 2009, when Primorac left the Ministry), which I also mention, among other things, in the Constitutional complaint no.: U-III 5023/08, which is still sub judice, and where I have challenged Topic’s reappointment as the Director … ….. in fact, I also submitted my nomination for the position of the Director of the Office after this person, at the end of 2007, secretly … abolished my department [of the SIPO] without complying with the prescribed statutory procedure …”


- “Topic’s decisions concerning procedures relating to PLR, which have caused the writers to suffer financial damage and which led to a serious violation of my right to work, at the same time meet the criteria of the criminal offense of “abuse of position and authority” and “negligent performance of duty” … “

- That the financial resources of the SIPO were used to pay for “the SIPO fleet of six luxury cars, including the supervision of the MZOS, and that he allowed himself to use, in addition to the Audi 6, also a new luxury E-class Mercedes for himself which was hidden among the shelves in the archives in order to cover up the squandering of funds from the state budget.”

- “Topić himself has for years provided false information about the number of officials working in my Department (he claimed that there were twice as many officials working there compared to the actual number employed) to the Ministry of Administration which forwarded the received information to the Government of the Republic of Croatia.”

- “… Because of Topić’s lies, his incompetence for which he compensated by bribery, and due to the lack of supervision [of the SIPO], I am obliged to continue with this procedure which has been unduly protracted in such a disgraceful manner …”

- “…. for years I have worked overtime managing the aforementioned Department and, unlike Topić and others, I have never requested nor received any financial compensation for this …”
- “From the perspective of criminal law, Topić’s actions in this case comply with the criteria of criminal offenses: negligent performance of duty, abuse of office, abuse in performance of duties, discrimination, violation of the right to work and other labor rights and corruption [bribery] … “

- “If the supervisory bodies had conducted a proper administrative audit of the Office, i.e. of Mr. Topić, and subjected him to criminal prosecution, he would have been dismissed from his position at the beginning of 2008. The announced reconstruction of the Government should also have led to the dismissal of Mr. Topić, since the disclosure of this information in public would certainly have harmed the Government.”

all of which [is alleged to have] damaged the honor and reputation of the private plaintiff, that is, in the described manner, she [is alleged to have] made a false claim which was liable to damage the honor of the other person as the [alleged] defamation became accessible to a large number of persons,

2. On 22 November 2010 in the letter sent to the Croatian Government, the Prime Minister Jadranka Kosor, which was also sent to the Croatian Parliament (deputy Bianca Matković) for information, as well as to the Minister of Economy, Labor and Entrepreneurship, the Minister of Science, Education and Sports, the Minister of Administration, the Minister of Foreign Affairs and European Integration, the Minister of Culture and the Minister of Finance and Miljenko Pavlaković in HEP, in order to belittle and insult the private plaintiff, she stated among other things the following:

- “In the last conversation with Topić (April 2008) in response to my inquiry about what was going to happen with the PLR (due to my dismissal), Topić answered that it was my personal thing. It simply cannot be my personal thing and such a reaction is completely incompetent, which should not come as a surprise, as the person in question completed his education in another country (an economist from Bosnia) and has never passed the professional state examination in Croatia”,

such that as described above, the other person was offended due to the [alleged] insult becoming accessible to a large number of persons,

and therefore, by acting in the manner described above, she [is alleged to have] committed the criminal offense against honor and reputation – by defamation – defined and punishable under


Art. 200 par. 2 CC/97, and partly under item 2. the criminal offense against honor and reputation – an insult – described and punishable under Art. 199 par. 2 CC/97, all with the application of Art. 60, par. 1 CC/97.

Pursuant to Art. 143 par.3 CPA/08 the private plaintiff is ordered to reimburse the costs of criminal proceedings according to Art. 145 par. 2, subpar. 1-6 CPA/08, all necessary expenses of the defendant and all necessary expenses and fees of the defendant’s legal counsel.

Statement of Grounds

At the commencement of the proceedings, the private plaintiff accused the defendant Vesna Stilin of having committed the offences which are detailed in factual and legal terms above.

The defendant was charged with having committed the criminal offences of defamation and insult on 22.11.2010 before the entry into force of the new CC/11. As the former CC/97 ceased to be valid from the date of entry into force of the new CC/11, it is necessary to consider, pursuant to Art. 3, par. 3 CC/11, the question of legal continuity of the repealed criminal offences of defamation under Art. 200, par. 2 CC/97 and insult under Art. 199, par. 2 CC/97. The court found that in the present case in view of the relevant criminal offences provided for in the new CC/11, legal continuity existed between the repealed criminal offense of defamation [“klevete”] under Art. 200, par. 2 CC/97 and the new criminal offense of dishonor [“sramoćenja”] under Art. 148, par. 2 CC/11, and likewise between the criminal offense of insult under Art. 199, par. 2 CC/97 and the criminal offense of insult under Art. 147, par. 2 of CC/11. Thus the factual description of the alleged offenses with which the defendant is charged may be considered to comply with the legal definition of the criminal offenses under Art. 147, par. 2 and Art. 148, par. 2 CC/11.

When asked to comment on the merits of the complaint, the defendant said that she did not consider herself to be guilty of the offenses with which she was charged.

During the taking of evidence, the defendant and the following witnesses were heard:

- Željko Topić (page no. 221);
- Ružica Cindori (page no. 230);
- Jadranka Oklobdžija (page no. 234); and
- Darinka Vedrina (page no. 235),

and the following documents were read:

[Note: The references to page numbers which follow are to the official file of the proceedings.]

- Letter of Vesna Stilin dated 22 November 2010 (pages no. 5-13),
- Leasing Agreement dated 29 June 2007 (page no. 128a),
- Notification of expiry of Leasing Agreement dated 14 May 2010 (page no. 128),
- Letter from the State Intellectual Property Office (SIPO) dated 9 July 2007 including annexes (pages no. 147-147a),
- Statement of remuneration paid to employees of the SIPO for 2007 (page no. 169),
- Report on the financial audit of the SIPO dated 15 January 2008 (pages no. 170-181),
- Authorization making the leased vehicle available dated 16 May 2007 (page no. 199),
- Agreements for temporary use of official SIPO vehicles dated 17 May 2007 and 17 May 2008 (pages no. 201 and 202),


- List of vehicles owned by the SIPO and vehicles acquired under leasing agreements (pages no. 203 and 204),
- Letter from the SIPO dated 8 April 2008 (page no. 301),
- Decision of the Croatian Government dated 10 April 2008 (page no. 301a),
- Letter from the SIPO dated 19 February 2008 (page no. 302), and
- Regulation on the Internal Organizational Structure of the SIPO dated 6 March 2008 (page no. 308).

In her defense (page no. 309), the defendant Vesna Stilin stated that, contrary to what the private plaintiff claimed, she had not written the impugned letter with the intention of defaming him, but for the purpose of defending the public interest, the interests of writers and her own personal interests with respect to the termination of her employment at the State Intellectual Property Office (SIPO). All of the allegations made in her letter were supported by annexes and evidence. In her opinion, the competent authorities who were authorised to conduct administrative audits of the SIPO had failed to fulfil their obligations in relation to the allegations of criminal misconduct raised against the present private plaintiff. She had been relieved of her duty as Assistant Director of the SIPO in 2008 by a decision of the Croatian Government. She was the only one of the five SIPO Assistant Directors at that time to be relieved of duty. The formal reason given for her dismissal was the abolition of the Copyright and Related Rights Department of which she was in charge in her role as Assistant Director. This Department was abolished by means of an amendment to the Regulation on the Internal Organizational Structure of the SIPO issued by the Government and based on a proposal submitted by the private plaintiff in his capacity as SIPO Director at that time. However, in his capacity as Director, the private plaintiff had failed to comply
with the prescribed procedure which was confirmed by the testimony of the witness Jadranka Oklobdžija. The private plaintiff acted in this manner with the sole aim of getting rid of her as Assistant Director. After she had been notified of the decision to dismiss her, she subsequently discovered that the private plaintiff had previously sent a letter containing damaging and untrue allegations about her performance as Assistant Director to the then Prime Minister Ivo Sanader. Following her dismissal she continued to receive her official salary for a further year, after which she registered with the Bureau for Employment where she remains on the register to this day. In her opinion, the fact that she was relieved of her duty as Assistant Director could not be considered as sufficient grounds for the termination of her employment with the SIPO because at the time of her dismissal she had the employment status of a permanent civil servant rather than that of a public official. These considerations led her to file a complaint with the Administrative Court but this complaint was rejected. She then submitted an application to the European Court of Human Rights which is still pending before that court in Strassburg. She stated that the competent authorities have not yet ruled on an application which she submitted for the revocation of the Government’s decision to dismiss her.

Concerning item 2. of the complaint, it was not her intention to insult the private plaintiff but rather to draw attention to his lack of professional competence in view of the fact that he was an economist by profession, rather than a lawyer or engineer, as is normally the case with the Directors of Intellectual Property Offices in other countries. The point here was that the SIPO is responsible for a specialised type of administrative proceedings [involving specialised legal and technical considerations].

The defendant declined to answer the questions of the private plaintiff.

In his testimony (page no. 221), the private plaintiff Željko Topić stated that he held the position of Director of the SIPO from 2004 to 2012. The defendant worked at the SIPO until 1998 when she was dismissed from the civil service. She was appointed as an Assistant Director of the SIPO by the


Croatian Government in 2004 and held this position until 2008 when the Croatian Government relieved her of this duty because her term of appointment had expired. He had previously proposed to the Government to relieve her of duty because, in his capacity as Director, he was dissatisfied with her performance as an Assistant Director. The defendant had conducted a systematic campaign against him from 2008 onwards. He had expected her to desist from her unreasonable defamation following the filing of his private complaint, but she had continued to act in the same manner after this and still continues to do so. He stated that he has been a Vice-President of the European Patent Organization since 2012. The defendant had also continued to defame him in front of this international organization. Her statement in the impugned letter that he had ignored the issue of the Public Lending Right as SIPO Director and that Croatian writers had suffered financial damage as a consequence of this because of the fees due for lending their books by public libraries was not true. The fact of the matter was that the Copyright Act defined the competences of the SIPO in relation to the collective management of such rights. On this basis, the SIPO had issued an administrative order granting collective management rights to organizations that represented holders of copyright and it had performed regular audits of the operations of such organizations. In the case under consideration, it was the Ministry of Culture and not the SIPO which had acted as an intermediary between the copyright holders and the beneficiaries. All of these facts had been well known to the defendant at the time when she made this false statement. Moreover, the statement of the defendant according to which he had paid HRK 500,000.00 for his second term of office was untrue. In addition to being completely unfounded, this statement was absurd in view of the fact that he had been appointed as SIPO Director on four occasions by three different Prime Ministers. Based on this statement the defendant had brought criminal charges against him which had been dismissed as unfounded. The defendant’s statement that, acting in his capacity as SIPO Director, he had seriously violated her right to work was also untrue. The fact was that she had been relieved of her duty as an Assistant Director of the SIPO by
a decision of the Government rather than on the basis of his proposal due to expiry of her appointment because of the change in government following which she was never reappointed. In his capacity as Director he had also received an official communication relieving him of this duty following which he had been reappointed by the new Government. After his reappointment as Director for a further term of office, he did not propose to the Government that she be reappointed as an Assistant Director. Her employment status was regulated by the Public Officials Act as opposed to the Civil Servants and Employees Act. The statement that, in his capacity as SIPO Director, he secretly abolished her Department was untrue. The Government was responsible for changing the organizational structure of such a state institution and this had been done in the present case by amending the Regulation on the Organizational Structure of the SIPO.

As to her claims concerning the official vehicles, the SIPO never had more than three vehicles available for official purposes. Following his appointment as Director, he discovered that three vehicles had been written off for accounting reasons. In view of this he authorized the procurement of three new official vehicles under a leasing arrangement in compliance with the prescribed procedure which involved obtaining prior approval from the Ministry of Finance. Concerning the alleged concealment of a Mercedes in the SIPO archives, this vehicle was parked in a area of the garage beside a door on which an “Official Garage” sign was displayed in a prominent manner. The vehicle in question was used on a daily basis by SIPO staff so that, contrary to the defendant’s claims, it was not concealed. Furthermore, the vehicle was parked by the official chauffeur rather than by the private plaintiff himself.

The statement of the defendant alleging that, in his capacity as SIPO Director, he had supplied false information to the Ministry of Administration about the number of employees in the SIPO was untrue. Such information was provided periodically by the Human Resources Department of


the SIPO on the basis of official notices relating to assignments to the various positions. The defendant’s statement that he had received compensation for overtime work in his capacity as SIPO Director was also untrue. The only compensation which he had received was that which had been paid to him for his work as a member or chairman of the Examination Committee for patent agents. This money was not paid from the state budget because it was the examination candidates who were responsible for paying the costs of the Examination Committee.

In his capacity as SIPO Director, he had signed an agreement with the Ministry of Science and Education according to which the SIPO had made one of its official vehicles, an Audi A6, available for use by the Ministry on a temporary basis whenever this vehicle was required. The Ministry had used the vehicle on a temporary basis over a period of 2 years, during which time the SIPO had paid the associated leasing costs. He assumed that the vehicle was used by Dragan Primorac who was the Minister at that time. The results of an audit of the SIPO conducted by the Ministry of Science stated specifically that this vehicle had been leased after the required approval had been obtained. As far as he was aware, it was common practice for vehicles to be reallocated among state authorities based on current requirements. As far as the official Mercedes was concerned, this vehicle had been procured on the basis of a leasing arrangement. Following the expiry of the lease, the leasing company requested the SIPO to either return the vehicle or to purchase it. According to the relevant Government decision in force at the time, state institutions, including the SIPO, were not permitted to purchase vehicles. He therefore requested permission to purchase the Mercedes on behalf of the SIPO because he considered that it would be a good bargain, but the request was not approved. The SIPO returned the vehicle to the leasing company and then he purchased it from the leasing company in a private capacity for the sum of HRK 75,000.00 which was the asking price quoted by the leasing company. At the time of this purchase, the vehicle was 3 years old and its registered mileage was 60,000 km.

Having analyzed the private plaintiff’s testimony, the court did not accept its veracity in the part where he stated that the defendant was relieved of her duty as Assistant Director of the SIPO due to the expiry of her term of appointment. This testimony is contradictory to the statement of grounds provided in the decision dismissing her (page no. 301a) where it is stated that she is being relieved of duty on the basis of the proposal of the SIPO Director, and it is likewise contrary to the certificate signed by the private plaintiff himself (page no. 303) where it is stated that the defendant had acted as an Assistant Director of the SIPO on a permanent basis.

In her testimony (page no. 234), the witness Jadranka Oklobdžija stated that she had worked at the SIPO as an administrative lawyer from 1994 to 2012. She is now retired. In 2008, she was the representative of the public sector staff union at the SIPO. According to her recollection, at that time the internal organizational structure of the SIPO was modified in accordance with the Internal Organizational Structure Regulation. According to Art. 79 of the Collective Bargaining Agreement for Civil Servants and Employees, the private plaintiff, in his capacity as SIPO Director at the time, was under an obligation to inform the union of the proposed changes to the organizational structure. However, in the present case he omitted to do so despite the fact that these were significant alterations to the organizational structure of the SIPO. For example, the entire Copyright and Related Rights Department, where the defendant and another employee worked, was closed down. The witness has known the defendant for many years and she states that the latter carried out her duties in the SIPO conscientiously, she remained at work after office hours and was totally committed to her job. She is aware that the private plaintiff purposely omitted to invite the defendant to participate in briefing meetings. She is also aware that, at one point in time, the SIPO had six official vehicles, but the number was later reduced to three. One of these vehicles was the Mercedes which she never actually saw. She is aware that another one of the


vehicles, an Audi A6, was used by the then Minister of Science, Dragan Primorac. At that time the archives of the SIPO were located in an area of the building adjacent to the garage. She never went to the area of the building where the archives were located.

Having analyzed the testimony of the witness Jadranka Oklobdžija, the court accepted it as true in its entirety having found no reason to question its veracity.

In her testimony (page no. 235) the witness Darinka Vedrina stated that she worked as a legal graduate (LL.B) at the SIPO from 1993 until 2008 when she was re-assigned to the Ministry of Economy following the restructuring of the SIPO. She recalls that the internal organizational structure of the SIPO was modified by the Regulation without the staff union being given any prior notification about the changes. This reorganization resulted in the closure of the Copyright and Related Rights Department. In addition to the defendant, one other employee was working in that Department. The witness claims that the defendant, who was her former colleague with whom she had a very good relationship, performed her official duties with a higher level of dedication than that normally expected of a civil servant. She often remained at work after office hours. The witness also remembers that the Mercedes was one of the official vehicles of the SIPO at that time. She recalls having seen it parked in the auxiliary archives despite the fact there was sufficient room to park it in the garage area reserved for the official vehicles.

Having analyzed the testimony of the witness Darinka Vedrina, the court accepted it as true in its entirety having found no reason to question its veracity.

It is apparent from the testimony of Ružica Cindori (page no. 230) that she has no immediately relevant knowledge of the subject-matter of the present proceedings and consequently the court did not analyse this testimony in detail.

Concerning the alleged offense under item 1.

According to item 1. of the present complaint, the defendant is accused of disseminating false information in the form of the impugned allegations contained in the letter which she sent to several state authorities (page nos. 5-12) and with making such false statements for the purpose of damaging the honor and reputation of the private plaintiff such that her actions qualify in legal terms as a criminal offense of defamation according to Art. 200, par. 2 CC/97.

It is not disputed that the defendant is the author of the impugned letter nor that she sent it to various state authorities nor that the letter contains the aforementioned impugned allegations about the private plaintiff.

First of all, it must be noted that defamation can only arise on the basis of a factual statement (for example: about the action of a person, a specific event, an objective situation, capacity, quality or relationship) whose veracity can be objectively determined in a manner such that the finding can be accepted by everybody. Consequently, defamation cannot arise on the basis of a value judgment, a subjective assessment, a conclusion or an opinion about another person.

Having analyzed the available evidence, the court found a number of the impugned allegations to be true, such that they cannot per se be considered to be of a defamatory nature. With respect to some of the allegations, the defendant was found to have had legitimate grounds for considering them to be true. Some allegations were found not to be factual statements, such that they cannot per se be considered to be of a defamatory nature. Finally, some allegations were found to be substantially defamatory in nature, but these allegations were made in defense of legal rights and for the purpose of safeguarding a legitimate interest of the defendant, and they were not disseminated with the sole intent of damaging the private plaintiff’s honor and reputation.


These findings are explained in detail below for each one of impugned allegations:

- “Due to the manner in which Topić ignored the aforementioned problems, the writers have suffered financial damage because they should have been receiving compensation for the lending of their books in public libraries for at least the past two years.”

From the overall content of the impugned letter (page nos. 5-12) it emerges that the allegation implies that the private plaintiff, in his capacity as SIPO Director, ignored (i.e. neglected) the issue of the Public Lending Right, which led to financial damages being suffered by the writers as the holders of such rights. The court judges that the allegation that the private plaintiff ignored (i.e. neglected) the issue of the Public Lending Right does not amount to a factual statement whose veracity can be objectively determined, but rather it expresses the opinion and the critical judgment of the defendant concerning the manner in which the private plaintiff acted as SIPO Director. It is noted in this regard that the defendant provided an explanation for her opinion and judgment in the impugned letter (page nos. 8 and 9). The question as to whether or not a person has ignored (i.e. neglected) something depends on subjective individual judgment and, consequently, it is not and cannot be subject to objective determination.

- ” Željko Topić bought his second term as the Director of the State Intellectual Property Office by paying approximately 500,000.00 HRK to the Ministry of Education and Sports (MZOS) during the period of over two years (from May 2007, when the agreement in question was signed, until July 2009, when Primorac left the Ministry), which I also mention, among other things, in the Constitutional complaint no.: U-III 5023/08, which is still sub judice, and where I have challenged Topic’s reappointment as the Director … ….. in fact, I also submitted my nomination for the position of the Director of the Office after this person, at the end of 2007, secretly … abolished my Department [of the SIPO] without complying with the prescribed statutory procedure …”

The private plaintiff was reappointed as Director of the SIPO by the decision of the Government dated 19 March 2008 (page no. 105). On 7 May 2007, the private plaintiff, acting in his capacity as SIPO Director, leased a luxury Audi A6 vehicle having the value of EUR 80,063.93 purportedly for official SIPO-related purposes (page no. 140). On 17 May 2007, i.e. immediately following the procurement of said vehicle, the private plaintiff, again acting in his capacity as SIPO Director, placed the vehicle at the disposal of the Ministry of Science, Education and Sport (page nos. 201 and 202) while the SIPO undertook to cover the costs of the leasing payments.

A logical question thus arises: for what purpose did the private plaintiff procure the vehicle in question? Considering the fact that the vehicle was used by the then Minister of Science, Education and Sport, Dragan Primorac, who was at the time a member of the Croatian Government, the defendant had legitimate grounds for concluding that – in a manner of speaking – the private plaintiff had effectively “purchased” his second term of office as SIPO Director [i.e. by bribery].

Concerning the allegation that the private plaintiff “secretly … abolished my Department without complying with the prescribed statutory procedure”, having analyzed it in the overall context of the impugned letter where it was made, the court is of the opinion that it does not amount to a factual statement, but rather that it expresses an opinion and a critical judgment of the defendant concerning the manner in which the private plaintiff acted as SIPO Director. It is noted in this regard that the defendant provided an explanation for her opinion and judgment in the impugned letter (page no. 8).

- “Topic’s decisions concerning procedures relating to PLR, which have caused the writers to suffer financial damage and which led to a serious violation of my right to work, at the same time meet


the criteria of the criminal offense of “abuse of position and authority” and “negligent performance of duty” … “

Having analyzed the allegation in the overall context of the impugned letter where it was made, the court is of the opinion that this allegation does not constitute a factual statement, but rather expresses an opinion and a critical judgment of the defendant concerning the manner in which the private plaintiff acted as SIPO Director and for which she provided a detailed explanation in the impugned letter (page no. 7).

- That the financial resources of the SIPO were used to pay for “the SIPO fleet of six luxury cars, including the supervision of the MZOS, and that he allowed himself to use, in addition to the Audi 6, also a new luxury E-class Mercedes for himself which was hidden among the shelves in the archives in order to cover up the squandering of funds from the state budget.”

It emerges from the list of cars owned by SIPO and from the leasing contracts contained in pages no. 203 and 204 of the file that the SIPO used a total of 6 passenger vehicles for official purposes between 1 December 2003 and 31 December 2009, namely:
- an Audi A6 3.0 TDI Quattro, – an Audi A6 2.8 Quattro,
- an Audi A4 2.0, – a Mercedes E 280 CDI,
- a Skoda Octavia 1.9 TDI, and – a Skoda Octavia Combi 1.9 TDI.

Consequently, in making the impugned allegation the defendant did not make any untrue statement about the aforementioned vehicles.

From the testimony of Jadranka Oklobdžija who was at that time an employee of the SIPO, it emerges that she never saw the official Mercedes. From the testimony of the former SIPO employee Darinka Vedrina, whose duties at that time included performing archival services, it emerges that she saw the official Mercedes parked in the area of the SIPO’s auxiliary archives despite the fact that there was sufficient room to park it in the garage area reserved for SIPO’s official vehicles. A photograph of an official SIPO Mercedes E class vehicle parked in the area adjacent to the archive shelves is attached to page no. 123 of the file is. In view of the foregoing, the defendant had valid grounds for considering that the official Mercedes E class was hidden among the shelves of the archives.

- “Topić himself has for years provided false information about the number of officials working in my Department (he claimed that there were twice as many officials working there compared to the actual count) to the Ministry of Administration which forwarded the received information to the Government of the Republic of Croatia”

From the testimony of Darinka Vedrina who was at that time an employee of the SIPO, it emerges that up until 2008 the defendant and one other staff member were employed in the Copyright and Related Rights Department. It emerges from the letter of the SIPO dated 9 July 2007 and the attached civil service registration plan (page nos. 147-147a) that the SIPO provided false information to the Ministry of Administration, in particular that the Copyright and Related Rights Department employed four persons, whereas in fact it only had two employees.

The letter was signed by the private plaintiff in his capacity as SIPO Director which is why his testimony according to which he claimed that such information was provided to the Ministry of Administration by the Human Resources Department of the SIPO is hereby found to be untrue. Accordingly, the impugned allegation of the defendant concerning the provision of false information to the Ministry of Administration does not contain any untrue statement.


- “… Because of Topić’s lies, his incompetence for which he compensated by bribery, and due to the lack of supervision [of the SIPO], I am obliged to continue with this procedure which has been unduly protracted in such a disgraceful manner …”

From the impugned letter (page no. 7), it emerges that the expression “Topić’s lies” refers to statements which the private plaintiff made in his capacity as SIPO Director in the proposal of 19 February 2008 (page no. 302) requesting that the defendant be relieved of her duty as Assistant Director. In the relevant proceedings, the defendant did not succeed in establishing that the proposal contained any lies in consequence of which the impugned allegation concerning “Topić’s lies” may be considered to be of a prima facie defamatory nature.

However, according to Art. 203 CC/97, in the case of defamation made in defense of a right or in order to safeguard a legitimate interest a criminal offense of defamation shall not be deemed to have been committed unless it clearly emerges from the manner of expression and the relevant circumstances that the impugned conduct was intended solely to damage a person’s honor or reputation. It emerges from the statement of grounds of the Government decision dated 10 April 2008 which relieved the defendant of her duty as Assistant Director of the SIPO (page no. 301a) that one of the reasons on which her dismissal relied was the proposal from the private plaintiff. In response to the statements contained in said proposal, the defendant filed a private complaint against the private plaintiff alleging a criminal offense of defamation (page no. 40). It is therefore self-evident that the defendant made the impugned allegation concerning “Topić’s lies” in defense of her own honor and reputation and her employment rights and it cannot be inferred from the overall content of the impugned letter and the circumstances surrounding its composition that her sole intent was to damage the private plaintiff’s honor and reputation.

With respect to the impugned allegation concerning “Topić’s incompetence”, the court judges that this is not a factual statement whose veracity is capable of being established in an objective manner such that it cannot per se constitute defamation. It is in effect an opinion and value judgment of the defendant concerning the manner in which the private plaintiff acted as SIPO Director. It is noted in this regard that the defendant provided explanations for this opinion and judgment in the impugned letter (page nos. 8 and 9). The question as to whether or not a person is competent is not and cannot be subject to objective determination since it ultimately depends on subjective individual judgment.

- “…. for years I have worked overtime managing the aforementioned Department and, unlike Topić and others, I have never requested nor received any financial compensation for this …”

The defendant makes a claim here to the effect that the private prosecutor received financial compensation for overtime work. It is noted in this regard that it emerges from the summary of payments made to SIPO staff in 2007 (page no. 169) that the private plaintiff received remuneration having the total gross amount of HRK 119,769.51 for his membership in the Examination Committee for professional examinations. In view of the fact that these professional examinations were held outside normal office hours, this remuneration for participation in the Examination Committee may legitimately be considered as a form of remuneration for overtime work. Consequently, the defendant did not make any untrue statement in relation to this remuneration.

- “From the perspective of criminal law, Topić’s actions in this case comply with the criteria of criminal offenses: negligent performance of duty, abuse of office, abuse in performance of duties, discrimination, violation of the right to work and other labor rights and corruption [bribery] … “


In the impugned letter, the defendant detailed a series of alleged irregular acts and omissions attributed to the private plaintiff in his capacity as SIPO Director and which she found to match the statutory definition of various criminal offenses. Accordingly, this is not a factual statement to the effect that the private plaintiff had committed a criminal offense, but rather the statement of an opinion by the defendant to the effect that he had committed a criminal offense and for which she gave a reasoned explanation in the impugned letter.

“If the supervisory bodies had conducted a proper administrative audit of the Office, i.e. of Mr. Topić, and subjected him to criminal prosecution, he would have been dismissed from his position at the beginning of 2008. The announced reconstruction of the Government should also have led to the dismissal of Mr. Topić, since the disclosure of this information in public would certainly have harmed the Government.”

The above allegations do not contain any factual statements, but are merely assumptions and speculations, which cannot per se constitute an act of defamation.

Concerning the alleged offense under item 2.

According to item 2. of the present complaint, the defendant is accused of insulting the private plaintiff by the impugned allegation such that her actions are claimed to qualify in legal terms as a criminal offense of defamation under Art. 199, par. 2 of CC/97.

The court judges that the impugned allegation that the private plaintiff was incompetent “because [he] completed his education in another country (an economist from Bosnia) and has never passed the professional state exam in Croatia ” constitutes an insult.

It effectively accuses the private plaintiff of being incompetent solely on the basis of the fact that he is “an economist from Bosnia” which clearly belittles the private plaintiff on a personal level. However, according to Art. 203 of CC/97, a criminal offense of insult shall not be deemed to have been committed in the case of an insult made in defense of a right or in order to safeguard a legitimate interest, unless it clearly emerges from the manner of expression and other relevant circumstances that the impugned conduct was solely intended to damage a person’s honor or reputation. As has already been established above, the impugned letter was a reaction of the defendant to the allegations contained in the proposal submitted by the private plaintiff in his capacity as SIPO Director requesting that she be relieved of her duty as Assistant Director and this proposal was relied upon as one of the reasons for her dismissal. In view of the foregoing, it is clear that the defendant made the impugned allegation in defense of her own honor and reputation and her employment rights and it cannot be derived from the overall content of the impugned letter and the circumstances surrounding its composition that her sole intent was to damage the private plaintiff’s honor and reputation.

Having analyzed all of the impugned allegations in the overall context of the letter and having regard to the circumstances surrounding its composition, the court judges that the entire content of said letter was directed towards defending the honor and reputation of the defendant and it was not disseminated with the sole intention of damaging the honor and reputation of the private plaintiff. The impugned letter does not contain any allegation relating to the plaintiff’s private life, but is solely concerned with matters relating to his official position as SIPO Director and it was sent to competent state authorities whom the defendant believed were entitled to be informed about how said person had acted in this official capacity.


Consequently, the court acquitted the defendant of the charges pursuant to Art. 453, par. 3 of CPA/08 because the private plaintiff had failed to demonstrate that she had committed the criminal offence with which she was charged.

In view of the fact that the defendant is acquitted of the charges, pursuant to Art. 149, par. 3 of CPA/08 the private plaintiff is ordered to pay the costs of the criminal proceedings under Art. 145, par. 2, subpar. 1-6 of CPA/08, the necessary expenses incurred by the defendant, and the necessary expenses and fees due to her legal counsel.

MUNICIPAL CRIMINAL COURT OF ZAGREB
26 January 2015

COURT REGISTRAR:
Jasminka Popović

JUDGE:
Marijan Bertalanič

INFORMATION CONCERNING THE RIGHT OF APPEAL
Either party may file an appeal against this judgment within 15 days of receiving a copy thereof. The appeal should be submitted in triplicate to this court and shall be decided upon by the County Court of Zagreb.

Authorised person responsible for the accuracy of the copy
Snježana Perišić
signature and stamp

For accuracy and concision see the original judgment in Croatian (above). Readers are free (and encouraged) to publish these documents elsewhere so as to ensure that Topić cannot make them go away (as tends to happen).

Benoît Battistelli Allegedly Turns to Moscow and Putin-Inspired Tactics to Oppress and Suppress EPO Staff (Updated)

Posted in Europe, Patents at 1:45 pm by Dr. Roy Schestowitz

Update (19/3/2015): some allege that Blue Coat is involved.

Moscow

Summary: Sources indicate that all of the EPO’s Internet traffic is now being routed through Moscow for surveillance purposes and new information about cyberattacks reaches us as well

HAVING CHECKED AND CAUGHT UP WITH THE LATEST events surrounding the EPO (during my absence) I was finally able to release some exclusive coverage about Željko Topić (there is a lot more coming this month), but what about the arrogant and Napoleonic Benoît Battistelli, who tried so hard to derail the protests against him last month, having engaged in censorship of staff that a Dutch court ruled illegal? The Dutch court’s decision is to be covered with all the gory details another day, so today we intend to focus on another angle which nobody appears to have covered.

A source has told us that “[a]ll EPO Internet (in and out traffic) is routed through 80.81.193.61. This IP belongs to Moscow-based Moscow Telecom Corp or COMCOR. COMCOR like Commander of the Corp, old Russian army grade. This company presents itself as being specialized in data and traffic analysis.”

We were unable to independently verify the accuracy of this claim, so we would appreciate it if readers could corroborate or investigate this further (we already have some associates looking into it).

Cyberattacks, DDOS, etc. are another kind of allegation that — although very reasonable with strong evidence — we cannot yet attribute for sure to EPO management.

“Just for information,” told us a source, in case someone is eager to investigate further, “the Croatian news portal dnevno.hr was subject to a “cyberattack” during late December 2014 / early January 2015. Contact details for dnevno are as follows:

“Director of portal „dnevno. hr“: silvio.cizmak@dnevno.hr
“Editor: drazen.boros@dnevno.hr

“These people might be able to provide technical details about the attacks on their server so that a comparison could be carried out to see if there were any similarities on a technical level.”

There are now at least 3 sites critical of the EPO which claim to have come under attack, with evidence tying some of the attacks to what seem like (potentially) EPO involvement. Sources have repeatedly warned us that criticising Topić is risky business, not just because he tends to bully his critics (even in the courts — more on that to come in another post).

A source of ours added: “The main reason we suspect that there could be a Topić connection to the attacks on dnevno.hr is the fact that around the time that the attacks started they had just published an interview with Rikard Frgacic in which Topić was mentioned (and referred to as a “Balkans gangster” with a call for his arrest by German police).”

Yesterday and the day before that when we published articles about Mr. Frgacic the site Techrights became inaccessible several times due to higher volume of cracking attempts. This is quite typical and it has become something we now expect (it has been like this for nearly half a year whenever a major article about the EPO got released).

Our source continues: “The interview also made reference to the links between Topic and the (former) Croatian President Josipovic. It was published in the middle of an election campaign which Josipovic subsequently lost.

“The dnevno site was offline for a couple of weeks during the Presidential campaign. This may have been an attempt to block public coverage of the Topic-Josipovic link. But we can only speculate about that.

“We are by no means certain that it’s the same “crackers” who have been targeting dnevno.hr, techrights and SUEPO. The attacks may well be coming from different sources. It would be interesting to see if there was a common connection but it may be too difficult to get to the bottom of this due to the geographical distribution of the targets.”

If it does turn out that EPO has been involved in DDOS attacks (indirectly of course), then there are grounds for a lawsuit.

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