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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The rule of low, not law
Summary: The USPTO continues to lower the bar for patents’ acceptance, but on the other hand, many software patents are increasingly being rejected at the courts
Software patents may be on their way down, but patents as a whole are not going down, only their standard goes down. As a relatively benign patent lawyer put it the other day: “The fight for patent reform isn’t about trying to trample on inventors’ rights. It’s about trying to deal with the reality of thousands of bad patents and trying to prevent people from collecting money (and hindering innovation) based on patents that should never have issued.”
On another day he shed light on this troll:
And an Acacia subsidiary was ordered to pay NetApp’s legal fees after suing on patents that turned out to be licensed already.
“Software patents may be on their way down, but patents as a whole are now going down, only their standards go down.”The roundup links to this article about Acacia and it says that this “subsidiary of the patent aggregator had brought suit despite already striking a licensing deal with RPX.”
RPX is another kind of troll, but not quite the aggressive one. Here is some more coverage:
NetApp sticks biggest “patent troll” with $1.4M fee sanction
This summer, the Supreme Court made it easier for defendants to collect fees when they win patent cases. The decision is starting to have an effect—the nation’s largest patent troll just got slapped with an order to pay $1.4 million in attorneys’ fees to NetApp, which it sued in 2010.
The case brought by Summit Data Systems, a branch of Acacia Research Corp., hinged on an accusation that NetApp infringed when its server-based software interacted with an end user on a Microsoft operating system. The two patents-in-suit, 7,392,291 and 7,428,581, relate to “block-level storage access over a computer network.”
Notice the Microsoft connection. Some consider Acacia to be somewhat of a Microsoft proxy for several reasons that we covered before. This again is a software patent. This patent got defeated. Here is the EEF writing about another software patent, dubbing it “stupid patent of the month”:
Blue Spike LLC is a patent litigation factory. At one point, it filed over 45 cases in two weeks. It has sued a who’s who of technology companies, ranging from giants to startups, Adobe to Zeitera. Blue Spike claims not to be a troll, but any legitimate business it has pales in comparison to its patent litigation. It says it owns a “revolutionary technology” it refers to as “signal abstracting.” On close inspection, however, its patents turn out to be nothing more than a nebulous wish list. Blue Spike’s massive litigation campaign is a perfect example of how vague and abstract software patents tax innovation.
EFF is calling out software patents now, not just “stupid patents”.
According to some new numbers, the stupidity of patents only gets worse as it gets easier to have them granted:
Dennis Crouch over at Patently-O reports that for Fiscal Year 2014 (which just ended), the USPTO granted a record number of utility patents, over 300,000. Dennis determines that this results in an allowance rate of about 70%.
“Think about that – 70% of patent applications result in a patent,” says this article, but the real number may be 92% because some reapply until 'success'. This is ridiculous. A patent lawyers’ site says 300,000 patents got granted in one fiscal year. Good luck keeping track of so-called ‘infringements’.
Well, only recently we gave many examples of software patents being eliminated by US courts. Steven Seidenberg, writing for Intellectual Property Watch, claims that the “US [is] Cracking Down On Software Patents” and in his own words:
The US courts are aggressively applying the ruling. So is the US Patent and Trademark Office (USPTO). Thanks to their common interpretation of the US Supreme Court’s recent decision in Alice Corp. v. CLS Bank, it is now open season on software patents.
Software patents are definitely suffering a major blow right now, but the overall problem is far from over. As TechDirt put it yesterday, the USPTO‘s standards are so low that a “Design Patent Granted… On A Toothpick”. It’s not satire. The EPO is corrupt, but the USPTO may not be much better. They are not providing public service; they are a front for corporations and increasingly trolls too. █
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Summary: A prelude to a long article about a thug called Topić (above), his controversial Battistelli-sponsored appointment, and the removal of auditory functions by Battistelli
A WEEK ago, in our third part of this increasingly long series (we receive more leaks all the time), we wrote about Battistelli, having already demonstrated to some degree that appointments at the EPO are made based on neoptism, regulatory controls get abolished (by the alleged abusers), wages are grossly inflated, and scope of patents has gone bat**** crazy, worse than that of the US in some regards (the US starts restricting patents on software and genetics while the EPO does the very opposite).
The EPO is a rogue organisation.
No matter what people may perceive the EPO to be, it should probably be shut down. Europe needs to start all over again. Even EPO staff is upset. A large number of EPO staff was protesting in the streets.
This post continues the previous one and contains details of problems with the EPO’s audit mechanisms which may be of interest to any European citizen. As our anonymous source put it, succinctly: “This stuff is probably worth a story in itself but it also connects tangentially with the Topić story because the only official “investigation” which has been undertaken into Topić’s appointment at the EPO so far was carried out by the Internal Audit department which is directly under Battistelli’s control.
“Given that Battistelli sponsored Topic’s candidacy as Vice-President, there is a clear conflict of interest here.
“Hardly surprising that the investigation resulted in a “whitewash”.”
More evidence of this (documents) will soon follow.
Next week we are going to look in more detail (and in English) into the Topić scandals. A lot of it was covered in non-English media and it’s quite a jaw-dropping story, or a set of stories similar to the Watergate scandal (escalation of damage control). What’s shocking is that a person as corrupt as Topić is now in a high position of power at the EPO. Our first Techrights article about Topić attracted some strong responses. Next week will be even better. █
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Inner circle of Battistelli
Summary: A preliminary look at Battistelli’s reign and how regulatory powers got abolished, leaving the EPO reckless and largely unaccountable
THIS is our third (hopefully among many) outline of EPO abuses. It’s the third instalment in a multi-part series about the European Patent Organisation/Office, which is rotten to its core. EPO — like Google — has enjoyed positive public perception for too long. It’s time to shatter the myths of professionalism and innovation.
Having studied dozens of documents and articles about this topic (usually translations because the English-speaking press mostly overlooks these issues), we are shocked to see just to what extent the EPO engages in dirty tactics, conflicts of interest, and revolving doors. It’s no better than the FCC or CAFC.
Readers who saw the first Techrights article on this topic (focusing on Topić’s appointment) sent us some valuable feedback. Alex Weir, for example, told us: “I read with interest your piece on corruption in the EPO, from my personal experience there have been questions regarding the EPO and corruption in relation to EC contracts and relations with China since the late 1990s, I am sure if you dig you will come up with more evidence.”
Today’s article focuses on Battistelli, the EPO’s President. As we keep getting sent more dirt about the EPO it is hard to say just how many future articles will revolve around his own scandals, which are unique because they show how abuses can go all the way up to the top (EPO President is the highest position).
One person told us on Diaspora that “Richard Stallman has said that the EPO is corrupt a few times, before this man [Topić] was put in charge.
“Thanks for bring up the issue.
“It seems to be the fault of the European Commission,” he added, citing this as an example. Quoting Stallman: “The EU administrators said they would let each country decide whether to allow genetically modified crops, but the proposed implementation is a trap. It has legal flaws, so these one-country bans might then be overturned.
“It is not unusual for the European Commission to make treacherous proposals. For instance, the “computer-related inventions” directive was written so it would appear to rule out software patents, but in fact would have authorized them. ”
“He wrote a lot about the EC’s nasty trick at the time,” said the person about Stallman. We too covered it for years, in video form also. The EPO derives its power from an administration which in its own right is relatively immature (like the Union) and ripe for abuse.
So let’s take a look at what Battistelli is not so well known for.
“Here is a link to an interview with Mr. Paul Ernst,” said our source, “who was a member of the (now abolished) EPO Audit Committee.
“His comments on the function of the Audit Committee and its abolition may be of interest.”
Here for example (with emphasis added) is what he said about the Audit Committee:
The dissolution of the Audit Committee at EPO was justified with the argument that the Audit Committee’s tasks are already carried out by Internal Audit and the Board of Auditors (BOA). What is your view on this?
Paul Ernst: The reasoning behind the decision reveals a lamentable ignorance of the fundamental role of an Audit Committee.
The Audit Committee can be seen as an answer to the famous question „who audits the auditor?“
The Audit Committee reports directly to the Administrative Council, whereas Internal Audit reports to the President and has no right to address the Administrative Council directly.
The Audit Committee protects the independence of both audit functions and observes the coordination between Internal Audit and External Audit, and the follow-up given to audit recommendations.
The Audit Committee should also raise its voice if a significant conflict of interest is discovered, e.g. a close relationship between a member of the BOA or the Internal Auditor or the Chair of the governing body and the chief executive.
There is no other institution that plays a similar role. These are significant differences that demonstrate that the Audit Committee does not duplicate the work of the Internal Auditor nor the Board of Auditors.
“Note,” said our source about Battistelli, quoting the following part: “The Audit Committee should also raise its voice if a significant conflict of interest is discovered, e.g. a close relationship between a member of the BOA or the Internal Auditor or the Chair of the governing body and the chief executive.”
“This is precisely the situation that exists between Battistelli (chief executive) and Angermann (member of the BOA),” explains our source. “However, as there is no longer any independent Audit Committee, it cannot raise its voice in the matter … how convenient for Battistelli.
“The problems of EPO governance arising from the abolition of the Audit Committee have been noted by the French Senator Jean-Yves Leconte in an open letter which he sent to French Ministers earlier this year.”
To quote: “En supprimant de facto l’indépendance de l’audit externe des comptes (budget de l’organisation 2 000 M€) la transparence sur les évolutions de l’OEB ne sera plus de mise. Et ceci sera aggravé par l’absence de contrôle interne crédible lié à l’évolution des relations internes à l’institution” (full text of the letter is available in French).
“The point to note here,” says our source, “is that the French Government is fully informed about the various problems at the EPO but it nevertheless supported Battistelli’s re-appointment in June of this year.”
“The problems with the EPO’s audit mechanisms were mentioned briefly in a report by WIPR in June of this year,” said our source, pointing us at the article “EPO staff in Battistelli fight”. The article states: “Staff have also claimed that the “overall governance” structure has been weakened by the audit committee being abolished without the administrative council knowing, and that Battistelli has put a “previous collaborator” from the French Patent Office in the “key post” of external auditor.”
Full details of this were made available to us in the form of copies of the Administrative Council documents referred to above (for readers’ information and for future reference).
“These documents are not classified as confidential so in principle they can be made publicly available,” explained our source.
The documents are as follows:
- CA-140-08-EN – 2008 – Audit Committee: possible models
- CA-32-09-EN – 2009 – EPO Audit Committee: draft terms of reference
- CA-33-09-EN – 2009 – Draft decision setting up an Audit Committee
- CA-D9-09-EN – 2009 – Establishing an Audit Committee of the Administrative Council
- CA-100-11-EN – 2011 – Internal appeal against CA/D 4/11
- CA-D4-11-EN – 2011 – Decision of the Administrative Council
- CA-55-11-EN – 2011 – Disbanding the Audit Committee
Notice the trend based on the chronology. Audit no more!
Next week we are going to show the ‘special relationship’ between Battistelli, the notorious Topić (known for corruption in his home coutry), and other administrative elements that seemingly collude to keep themselves and their networks in power, feeding off the European economy to do a disservice to Europe. In parts 4 and 5 we are going to shed more light on how the EPO was captured by hawks and wolves — people who should have never acquired such positions of power where they exploit a public institution for power and greed. █
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