Summary: Challenging the clueless ruling from the Court of Appeals for the Federal Circuit in the United States (very pro-software patents and anti-computer science), notable programmers write to the highest court
The SCOTUS and CAFC don’t often agree about patents. One possible (and commonly named) explanation is that the CAFC is inherently corrupt after patent maximalists got hold of positions of power, whereupon hid their conflicts of interest. CAFC, especially in its current form, should not be allowed to exist. It’s rogue.
Ruling in favour of Oracle, CAFC recently made copyrights on APIs a dangerous precedent and computer scientists are rightly fuming, seeing how a bunch of ignorant lawyers make a mockery of anyone who understands how computers work. As IDG put it:
Computer scientists have asked the U.S. Supreme Court to reverse an appeals court decision that Java APIs, the specifications that let programs communicate with each other, can be copyrighted.
In a dispute between Oracle and Google, the 77 scientists argue that the free and open use of the application programming interfaces has been both routine and essential in the computer industry since its beginning, and depended on the “sensible assumption” that APIs and other interfaces were not copyrightable.
“When Google wrote its program-interface (API) for Android, the company made a strategic decision to mimic the method call structure of Java,” writes Dennis Crouch under a misleading headline. “In the Copyright [CAFC] lawsuit,” explains Crouch, “the district court held that the API method headers were not protectable under copyright. However, the Federal Circuit reversed on appeal — finding the Java API taxonomy copyrightable as a whole. In particular, the appellate panel led by Judge O’Malley rejected the idea/expression merger doctrine since there are many other ways that functionally equivalent method-calls could have been constructed besides those found in Java. “Merger cannot bar copyright protection for any lines of declaring source code unless Sun/Oracle had only one way, or a limited number of ways, to write them.””
Anyone with a bit of a clue about programming (which makes about every patent lawyers or judge unsuitable to comment) can say that this is a ridiculous case with pretty much no basis at all. Many famous computer scientists have already written to the Court about this. As TechDirt put it:
Perhaps the most interesting was put together by the EFF, and was signed by 77 computer scientists, including many of the most well-known and most respected computer scientists around, including Hal Abelson, Brian Behlendorf, Ward Cunningham, Peter Deutsch, David Dill, Dave Farber, Ed Felten, Mitch Kapor, Alan Kay, Brian Kernighan, Guido van Rossum, Avi Rubin, Bruce Schneier and Bjarne Stroustrup among others. There are a lot more, obviously, but those were just a few of the names that stood out.
Perhaps realising that fellow OIN members and Android users can attack Android itself, Google has meanwhile signed this defensive deal with LG:
LG Electronics and Google sign a 10-year cross-licensing agreement that gives Google access to wearable device patents while encouraging LG to continue marketing Android mobile devices.
Android is by far the best selling platform right now, so no wonder it comes under fire. Since it is inherently Open Source (AOSP) and even Free software for the most part (it uses and contributes to Linux), we do care about this case a great deal and will keep on following it as a matter of priority. █
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Picture from FFII
Summary: A form of globalisation or unification among patent offices, courts and policies can serve to highlight the great role played by rich and powerful monopolists, including their rich lawyers who profit from protectionism
Patent monopolies, including monopolies on algorithms, are not going away quite so fast. There is resistance from very rich entities. These patents need to be squashed faster than they spread to more continents. There is a struggle between practitioners and lawyers, similar to the military industrial complex conflict with a peace-seeking public. The disparity between public will and moneyed interests (promoted to the public through corporate media) is not unique. The press likes to quote patent lawyers (almost exclusively) on patent-related matters, perpetuating a cycle of ignorance that we also view as overly prevalent in the copyright debate (propaganda terms/words like “intellectual property” and “pirates” don’t help).
“There is a struggle between practitioners and lawyers, similar to the military industrial complex conflict with a peace-seeking public.”Despite being corrupt, the EPO, which promotes software patents in Europe, has not come under scrutiny for years. There is some very blatant article from patent lawyers, titled “securing software patents through the EPO”, and it says: “In June 2014 the US Supreme Court provided its opinion in Alice Corporation v CLS Bank. This is the latest in a number of decisions from the higher US courts which confirm the considerable uncertainty which has existed in the United States in recent years as to the boundary between what is and is not patentable. The Supreme Court’s opinion follows a high-profile decision from the US Court of Appeals for the Federal Circuit in which the court sat en banc and reached what one of its judges referred to as “judicial deadlock”, such was the disagreement as to what should be patentable and how patentability under the US statute should be assessed.”
Further down it says: “Some European practitioners could be forgiven for feeling a sense of déjà vu on reading the Supreme Court’s opinion. After a rocky few years in the late 1990s and the early part of the 21st century, the European Patent Office (EPO) has now adopted an approach which is intended to focus only on the technical features of a claim when assessing patentability. That is, the mere presence of a computer or a generic computer implementation cannot in itself save subject matter from exclusion from patentability. In order to be patentable, an invention must provide a technical solution to a technical problem defined with reference to the closest prior art, and features excluded from patentability cannot contribute to the technical solution which the invention provides. In practice, it seems that this is a slightly different route to arriving at the position advocated by the US Supreme Court in its latest opinion – the invention itself must lie outside the abstract (in the United States) and outside the specifically excluded subject matter (in Europe).”
As we showed before, while USPTO reluctantly but surely moves away from software patents Europe goes the opposite way.
Here is another pro-patents blog (of lawyers) uttering some sentiments about patents in Europe, stating that “Pro-patent bias is a serious risk at the Unified Patent Court” (that’s the headline). To quote a key part: “‘When all you have is a hammer, everything looks like a nail.’ At the EU Patent Package Congress in Brussels, organized on 17 October by the universities of Antwerp en Louvain attended by Kluwer IP Law, several speakers tackled the issue: is the creation of a specialized court for patent litigation necessarily positive?
“For companies and innovation the answer, in theory, is yes. That’s why the Unified Patent Court (UPC) was created in the first place. Patent litigation would be centralized, and lawsuits in a large number of countries would no longer be necessary. Life was going to be a lot easier.
“But specialization has its downsides too, critics in Brussels warned. The hammer metaphor has been used since the sixties of the last century to warn for overreliance on familiar tools or systems. In Brussels it was quoted by Rochelle Dreyfuss, a prominent IP and litigation expert from the US, to refer to the pro-patent bias that developed in the US Court of Appeals for the Federal Circuit (CAFC).
“The CAFC was created in 1982 to handle all patent cases. The first 15 years of its decisions, only eight cases were reviewed, four of which were on procedural grounds. But over the last 15 years, the Supreme Court reviewed more than thirty cases, mostly placing stricter limits on substantial issues: patentability, validity and scope of patents, remedies.”
CAFC has been abducted by pro-patents lawyers, so we know how that goes. Finally, quoting another lawyers’ blog (IPKat), there are issues surrounding the UPC. Just published over at the IPKat was also this analysis about bad behaviour at the EPO:
For a considerable time, both the IPKat and Merpel have received a steady stream of emails seeking to bring to their attention certain allegations concerning a Vice-President of the European Patent Office. Until recently, the nature of these allegations has been rather difficult to verify, since the sources have been invariably pseudonymous, and any corroborating information available in Croatian only. The IPKat is a site for community discussion of intellectual property law, not an investigative journalism site, and Merpel does not have the resources to undertake independent investigations.
Recently however, Merpel has been alerted to some further developments that are both newsworthy and raise some interesting legal issues. In particular, she has been informed that a Petition has been filed with the European Parliament, asking the European Parliament to investigate the appointment of Mr. Željko Topić as the Vice-President of Directorate-General 4 of the European Patent Office back in March 2012. Mr Topić had previously been Director General of the State Intellectual Property Office of the Republic of Croatia since 2004. In formation about the background to this, and a copy of the Petition itself, can be seen here (which is the same link as the first in this paragraph). The complaints about the suitability of Mr Topić for office relate to allegations about his previous position.
“It references one of the Techrights articles so it seem like the series is starting to have an effect,” added one of our readers.
André Rebentisch (FFII) writes in the comments: “It is possible to empower the European Parliament to bring its questions to the attention of the EPO presidency by an inter-institutional treaty.
“In any case it seems advisable to harmonise substantive patent law within the European Union to make it part of the Acquis. The EPO is not authorised by its treaties to become a legal harmoniser of national patent laws, a de-facto role it successfully pursued.”
China too seems to be going down the path of creating new courts for dealing with patents, which is bad news. It means that the patent maximalists are gaining influence in the big system. Here is one relevant report from China:
A special court for intellectual property rights (IPR) cases will open in Beijing early this month, said the Supreme People’s Court (SPC) here Monday.
Two similar courts in Shanghai and Guangzhou will open by the end of this year, said Wang Chuang, deputy head of the IPR division with the SPC.
It is funny to see China using the ‘IP’ term which is typically used to insult China.
All in all what we have here is a sort of coup d’état by patent lawyers and their clients. They need to be stopped. █
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Summary: A roundup of patent news and in particular news pertaining to software patents, trolls that threaten Free software, and media bias
EVERY NOW and then Techrights covers examples of patents — not necessarily software patents — which show how ridiculous the patent system has become, especially the USPTO.
Some days ago the EFF wrote about a patent on how to film a yoga class — a patent similar in some sense to Amazon’s patent on photographing objects with a white background at the back.
EFF recently learned about a patent that covered a method of filming a yoga class. We reviewed the patent and discovered that it was just as ridiculous as it sounded. Despite our familiarity with absurd patents and our concerns about cursory review at the Patent and Trademark Office (PTO), we were still surprised that this one issued. It seemed the so-called “invention” wasn’t the kind of thing that should be patented at all—or at the very least, was not something novel or nonobvious. Yet another stupid patent, and winner of our October accolades.
Another new article from the EFF says that a “patent troll [was] hit with double fee award”. “Lumen View is a typical patent troll,” says the EFF. “Armed with a vague patent on “facilitating bilateral and multilateral decision-making,” it sent out aggressive letters demanding payment. It refused to explain how its targets actually infringed its patent. Instead, it made shakedown offers it knew would be less than the cost of defending a lawsuit. When startup FindTheBest spoke up about Lumen View’s tactics, the troll asked for a gag order. Thankfully, Judge Denise Cote of the Southern District of New York refused the troll’s censorship demand.”
Now everyone is against patent trolls. The plutocrats’ paper, Forbes, calls them “Non-Practicing Entities” in this “interview Shawn Ambawni the COO of Unified Patents.” (not to be confused with the proposed European Unified Patent Court)
“Unified Patents” issued some numbers on decrease in patent litigation although its numbers where not quite as encouraging as those from Lex Machina and they tried to paint it as a troll issue, not a patent scope issue. Here is the original spin with the “NPE” euphemism for trolls.
Instead of chastising the real patent aggressors, corporate media likes to pick on companies like Google (because Google stopped pursing real reform). It’s just too popular to pick on Google and not companies that are aggressive with patents and use them against Google, e.g. Apple, Oracle, and Microsoft.
The corporate media, USA Today for example, continues to reveal its support for abusive litigation with patents by big companies and trolls (referring to trolls as “NPEs”) and a patent maximalists’ Web site writes about Wi-LAN, a very notorious troll, as though it’s an “NPE” too:
Japan’s ROHM Semiconductor has entered into an agreement with Wi-LAN which will see it transfer a portfolio of patents to the Canadian firm. This is the latest deal in which a Japanese technology company – traditionally a very conservative bunch when it comes to aggressive IP monetisation – has teamed up with an NPE in an effort to improve returns from its patents.
From the same patent maximalists’ site comes an interview where Lemley says: “The tech industry is not monolithic – Apple and IBM, and increasingly Microsoft, are actually now fairly vocal proponents of patents as they become sort of more mature companies and see their market share being taken away by others. My guess is that if you asked engineers in the software world they would say, maybe not universally, but almost to a person, we’re on a roll lets just get rid of them.”
In other news about trolls, Acacia has just been defeated and here is an interesting observation about Intellectual Ventures (both are Microsoft-connected):
How can they have more subsidiaries than IV? Or rather, how can their fewer-than-IV-subsidiaries have filed more lawsuits than IV’s? It’s possible and highly likely because Joe’s a very thorough guy and wouldn’t say that if it weren’t true. It’s just surprising that I didn’t know that because I pride myself on knowing all the things about all the trolls.
One sure thing is, patent trolls and big trolls such as Microsoft continue to be defended by some of the largest (and corporations-run) media, leaving everyone in a state of anxiety and disarray. The patent system as it stands at the moment serves virtually nobody except the richest people and richest corporations. It’s a system of protectionism. █
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Photo from Reuters
Summary: Randall R. Rader, the disgraced judge from the Court of Appeals for the Federal Circuit (CAFC), is still trying to impose his patent agenda on the United States, despite the Supreme Court (SCOTUS) repeatedly throwing away his rulings
Amdocs, a very surveillance-oriented company (although not advertised as such), has just lost an important case. Dennis Crouch wrote about it in “Software as an Abstract Idea”. “In yet another case,” wrote Crouch, “a district court has invalidated a set of software patents as unduly abstract under Alice Corp., Mayo, and 35 U.S.C. 101. In this case, E.D. Va. Judge Brinkema issued a judgment-on-the-pleadings that all of the asserted claims of the four Amdocs patents were invalid as patent-ineligible. The Decision.”
Here again we are seeing the impact of the Alice case on software patents in the United States. “Alice Corp. Oral Argument Goes to the Dogs” is a new post from Matt Levy that’s basically a comical video. It has been widely agreed by now (except by the more delusional patent lawyers) that software patents are severely affected by the ruling in the Alice case on software patents in the United States.
Meanwhile, the CAFC‘s corrupt trolls apologist and software patents proponent Rader reportedly says that “The law makes no sense any more” because SCOTUS, ruling in the Alice case, has struck down many software patents (if not all). The site (source) is vigorously preventing copy/paste (we’ve tried many browsers and even page source), but it basically shows that Rader continues his zealous pursuit in the maximalists’ agenda (he himself has a serious conflict of interest, which is why he was ousted). █
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Summary: Unified Patents — not just Lex Machina — claims a sharp drop in patent lawsuits and patent boosters try to characterise this as a trend pertaining to patent trolls even though it is about software patents, irrespective of the nature of their ‘holder’
CONTRARY to claims that come from lawyers (patent profiteers), the SCOTUS determination not only affects patent trolls; it truly affects software patents, which many trolls just happen to use the most.
“Claims of decrease in litigation now come not just from one source.”Claims of decrease in litigation now come not just from one source. It was Lex Machina (headed by Mark Lemley, the famed Professor of Law) that initially claimed a sharp drop in patent lawsuits following the SCOTUS ruling that achieved so much more than the previous software patents decision (the Bilski case).
Patent maximalists portray this only as a loss for patent trolls: [via]
Further evidence of a dramatic slowdown in patent litigation activity in the United States is provided today in data published by Unified Patents, the entity whose business is based on helping SMEs fight frivolous patent suits. According to the research, which covers the third quarter of this year (June to September), there was a 23% drop in the number of suits filed compared to the second quarter, and a 27% year-on-year reduction.
Unified Patents is another, separate source of data and its findings are similar to those of Lex Machina. Still, the problem is that the patent maximalists paint is as a matter regarding patent trolls, even though it is about litigation in general (including from giant troll-like entities, e.g. Microsoft).
One might make a guess here and assert that patent lawyers are very, very worried that they might be losing business. █
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Summary: Contact details for national delegations to whom complaints can and should be made regarding irregularities and bad behaviour at the European Patent Office (EPO)
DAYS ago we covered some of the latest abuses at the EPO, which is no stranger to scandals. The EPO is hardly accountable, it eliminated oversight, and it is wasting billions of euros of taxpayers’ money all across Europe in order to protect corporations (at taxpayers’ expense) using patents, including patents of rogue, wide scope, potentially software patents and monopolies on genetics/life too.
To reduce oversight even further the EPO has made it harder to lodge complaints from the public. “There used to be e-mail addresses for the national delegations on the AC website,” tells us a source, “but Battistelli disabled these last year due to alleged “abuse” (i.e. he basically wanted to prevent members of the public from directly contacting their delegations).”
Thanks to some digging, today we can provide a list of E-mail addresses for the heads of delegation, for those among our readers who are interested in lodging a complaint electronically. We are also trying to compile a list of the competent Ministries, but this is hard to keep up to date as it is subjected to changes whenever there is an election. We will give some addresses at the bottom. These hardly change over time.
In case our regular readers or anybody else might be interested in complaining, here is a list of E-mail addresses for EPO Administrative Council members and their deputies (from the national IPOs). We also include a list with information about the Ministries that supervise the national IPOs. This listing is not complete, but it has details of the Ministries for about 18 of the more significant EPO member states (total member states around 38 at the last count). This information is in the public domain so we are free to distribute it.
There used to be email addresses for the AC delegations provided on the official EPO website but Battistelli had these removed allegedly due to “abuse”. Let’s not Battistelli to get away with even more of his abuses. According to our sources of information, people had been using these addresses to send in submissions about the controversial if not corrupt Topić, so it could be that Battistelli wanted to put a stop to that.
LIST OF EMAIL ADDRESSES FOR ADMINISTRATIVE COUNCIL DELEGATES (& DEPUTIES) FROM NATIONAL INTELLECTUAL PROPERTY OFFICES OF EPO CONTRACTING STATES
STATUS: 14 September 2014
Official website of the EPO’s Administrative Council:
See also: http://www.wipo.int/directory/en/urls.jsp
CZECH REPUBLIC: email@example.com
SAN MARINO: firstname.lastname@example.org
Just for information, the last quarterly meeting of the EPO’s Administrative Council (AC) was scheduled to take place on the 15th October in Munich and the next one is scheduled to take place in December, also in Munich. This means that the more publicity that this stuff attracts in advance of that latter meeting, the more political pressure will be on the AC to react. To date it seems that they have decided to ignore the matter and make no public statement, probably in the hope that the problem would go away of its own accord. Here is the full list
[PDF] of contacts again, with additional details:
COMPETENT MINISTRIES FOR NATIONAL INTELLECTUAL PROPERTY OFFICES OF SELECTED EPO CONTRACTING STATES
STATUS: 14 September 2014
For other states refer to: http://www.wipo.int/directory/en/
[Order of details:]
L’Office belge de la Propriété intellectuelle (OPRI)
SPF Economie, P.M.E., Classes moyennes et Energie
City Atrium C
Rue du Progrès, 50
B-1210 Brussels, BELGIUM
Ms. Sabine Laruelle
Ministerie van Economische Zaken
NL- 2500 EK, Den Haag
Mr. Henk Kamp
Office de la propriété intellectuelle
Ministère de l’Economie et du Commerce extérieur
19-21, boulevard Royal
Mr. Etienne Schneider
Intellectual Property Office
Business Innovation & Skills
1 Victoria Street
London SW1H 0ET
Dr. Vince Cable
Irish Patents Office
Jobs, Enterprise and Innovation,
23 Kildare Street, Dublin 2
Mr. Richard Bruton
Institut National de la Propriété Industrielle (INPI)
Ministère de l’Économie,
des Finances et
du Commerce extérieur
139, rue de Bercy
F-75572 Paris Cedex 12
Mr. Emmanuel Macron
Ufficio Italiano Brevetti e Marchi
Ministero dello Sviluppo Economico
Uffici del Ministro
Via Veneto 33
Ms. Federica Guidi
Oficina Española de Patentes y Marcas
Ministerio de Industria,
Energía y Turismo
Pº de la Castellana 160.
Dr. José Manuel Soria López
Deutsches Marken- und Patentamt (DPMA)
Bundesministerium der Justiz (BMJ)
Mr. Heiko Maas
Eidgenössisches Institut für Geistiges Eigentum
Eidgenössischen Justiz- und Polizeidepartement (EJPD)
Ms. Simonetta Sommaruga
Eidgenössisches Institut für Geistiges Eigentum
Ministerium für Inneres,
Justiz und Wirtschaft
Dr. Thomas Zwiefelhofer
Bundesministerium für Verkehr, Innovation und Technologie (BMVIT)
Mr. Alois Stöger
Hungarian Intellectual Property Office
Ministry of Public Administration
Kossuth Lajos tér 2-4.
Dr. Tibor Navracsics
Danish Patent and Trademark Office (DKPTO)
Ministry for Business and Growth
DK-1216 København K
Mr. Henrik Sass Larsen
Swedish Patent and Registration Office
Ministry of Justice
SE-103 33 Stockholm
Ms. Beatrice Ask
National Board of Patents and Registration of Finland (NBPR)
Ministry of Employment
and the Economy
P.O. Box 32
Mr. Jan Vapaavuori
Minister of Economic Affairs
The Norwegian Industrial Property Office (NIPO)
Ministry of Trade and Industry
P.O.Box 8114 Dep.,
Monica Mæland, Minister of Trade and Industry
Icelandic Patent Office
Ministry of Industries and Innovation
Ragnheiður Elín Árnadóttir
Minister of Industry and Commerce
To our dear European readers: If you have not been following our 2-month, 9-part series to date, now is a good time to familiarise yourself with it and issue an E-mail/letter to your local representatives. They ought to be informed of what goes on inside the secretive EPO. They can react to it and rectify matters. █
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The huge scandal that the corporate media seemingly refuses to cover
Summary: After Brimelow (shown above), with all her flaws and her scandals, an even worse President is installed who then abolishes oversight and seemingly brings his old friends to the EPO, creating a sort of subculture that is impenetrable to outsiders
THE EPO is no stranger to scandals (including some involving Alison Brimelow, as we noted before). We have covered them for years, but these days we are stunned by the degree of inherent corruption inside the EPO (this is the eighth part among many). The chin drops to the floor when one realises the lack of oversight. With no oversight comes great abuse, as revelations about the CIA and NSA, for example, serve to show.
Weeks ago we showed how EPO oversight got dismantled (related original documents are here) and below again is a quick walk-through (original documents):
- 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
Today we would like to tell the much longer story of the EPO’s Audit Committee. “In 2008,” tells us an anonymous source, “possible models for an “Audit Committee” were discussed in the proposal document CA/140/08 presented to the Administrative Council.”
Quoting the relevant document: “The present document follows on from the governance workshop in Ljubljana on 7-8 May 2008, the results of which were summarised in CA/62/08 dated 30.05.08.
One of the priorities emerging from the workshop was “Audit Committee and independence of Internal Audit”. The present document outlines in detail the compelling case for an Audit Committee. Three models are analysed and assessed. The Budget and Finance Committee and the Administrative Council are requested to give their opinion. Thereafter the Office will submit a proposal for the terms of reference of the Audit Committee.”
That was quite a long while back.
CA/140/08, as above, noted the following problems with the existing “Internal Audit” (emphasis added):
B. PROBLEMS RELATED TO INTERNAL AUDIT
a) Independence of IA
22. At the EPO, the internal audit function is separated from operational areas.
IA reports directly to the President and should remain a tool in the hands of the President.
This notwithstanding, an independent mechanism (such as an audit committee) would provide further assurance of the correct functioning of IA, particularly in view of the fact that even at the highest management level situations can occur that call for the independence of IA.
Such an independent mechanism should exist:
• to ensure that IA is equipped with a sufficient budget and resources for the adequate performance of the audit work;
• to prevent any undue limitation of the status of IA within the framework of its audit mission;
• to prevent any unjustified deletion of the proposed audit plan;
• to review the appointment, transfer and dismissal of the head of internal audit and internal auditors;
• to ensure that the supervision of IA does not rely entirely on the President.
As we have shown in previous parts, the President, Battistelli, seems to have gone out of control and is now acting like a tyrant with executive orders, potentially also appointing friends of his for positions of power.
“In June 2009,” explained our source, “the then-EPO President Alison Brimelow (former Director of the UK-IPO) presented the AC with the proposal documents CA/32/09 (“EPO Audit Committee: draft terms of reference”) and CA/33/09 (“Draft decision setting up an Audit Committee”).”
CA/33/09 (available above) proposed the establishment of an Audit Committee as a subsidiary body of the Administrative Council and said:
The present document is based on consultations between the Office and the Board of Auditors and presents a draft decision based on the outlines of the terms of reference for an EPO Audit Committee (cf. CA/32/09) as a subsidiary body of the Administrative Council pursuant to Article 14 of the Rules of Procedure of the Administrative Council of the European Patent Organisation.
CA/33/09 was approved by the AC in June 2009 as decision CA/D9/09.
Now, here is the best bit. At that point in time, Battistelli, Director of the French INPI, was the Chairman of the AC. Yes, no kidding. In July 2010, Battistelli was appointed to succeed Alison Brimelow as EPO President!
In May 2011, in his new role as EPO President he submitted a proposal to the AC to abolish the Audit Committee “for reasons of efficiency”. See CA/55/11, “Disbanding the Audit Committee”, which says: “The present document proposes that the Administrative Council’s June 2009 decision establishing an Audit Committee (CA/D 9/09) be repealed for reasons of efficiency.”
CA/55/11 was approved by the AC in June 2011 as decision CA/D4/11. The decision of the AC to abolish its Audit Committee was appealed by EPO staff representatives (see CA/100/11) and this appeal is currently pending before the Administrative Tribunal of the ILO (ILO-AT) in Geneva.
The letter from the Chairman of the Audit Committee is worth reading. CA/100/11, in pages 13 and 14, states (emphasis added): “The role of the Audit Committee is not an overlap with the internal and external audit but a key component of a balanced auditing and governance structure of the Office as it is in most international organisations.”
What a colossal mess.
A further parallel “thread” to this story concerns the EPO’s external audit mechanism, the so-called “Board of Auditors” which is established under Article 49 EPC. According to Article 49(1) EPC: “The income and expenditure account and a balance sheet of the Organisation shall be examined by auditors whose independence is beyond doubt, appointed by the Administrative Council for a period of five years, which shall be renewable or extensible.”
Again, what an utter joke!
The most-recently appointed member of the EPO’s three-man “Board of Auditors” is Mr. Frederic Angermann.
To quote this page from the EPO (under Munich, 13 December 2013, the 138th meeting of the Administrative Council of the European Patent Organisation):
The Council appointed Frédéric Angermann, Senior Auditor at the French Court of Auditors, as member of the Board of Auditors, with effect from 1 January 2014. Mr Angermann will succeed Michel Camoin, to whom the Council paid tribute.
Under the heading Legal and International Affairs, the Council heard the status report on latest developments concerning the Unitary patent, given by the Head of the Lithuanian delegation, representing the country holding the EU presidency for the second half of 2013. The chairman of the Select Committee (set up by the 25 EPC contracting states participating in the enhanced co-operation on unitary patent protection to supervise the EPO’s activities related to the tasks entrusted to it in the context of unitary protection) reported then on the committee’s 5th and 6th meetings (see Communiqué on the 6th meeting of the Select Committee, to be published shortly on this website). The Council thereby noted that a number of EPC contracting states not taking part in the enhanced co-operation had been granted observer status on the Select Committee. Other EPC contracting states not taking part in the enhanced co-operation will henceforth also be automatically granted observer status upon request.
What the EPO communique doesn’t tell us is that Angermann was previously a senior official at the French INPI. Battistelli must know him. This cannot be treated as merely a coincidence. In other words, he previously worked under Battistelli who was the Director of the French INPI, just prior to his EPO appointment.
Now refer back to Article 49(1) EPC: “auditors whose independence is beyond doubt”
Everyone can see the problem here. It doesn’t take a genius to see that Battistelli may be bringing in cronies.
In summary, the Audit Committee which was established in 2009 as an independent subsidiary body of the EPO’s Administrative Council (and thus independent from the EPO President) was subsequently abolished in 2011 “for reasons of efficiency” (by Battistelli) after barely two years of existence.
The Audit Committee was established by the AC under Battistelli’s chairmanship of that body and the proposal for abolition came from Battistelli in his new role as EPO President (where he would have been subject to the oversight of the Audit Committee).
The consequence of this abolition was to return to the “status quo” prior to CA/140/08: Internal Audit at the EPO is once again completely under the control of the EPO President (i.e. in the hands of one person).
Apart from this, one of the EPO’s external auditors appointed under Article 49 EPC has a previous close professional connection to Battistelli.
All of this indicates that there is no effective independent internal audit mechanism at the EPO. Battistelli killed it.
Furthermore, the integrity of the external audit mechanism under Article 49 EPC has been compromised by Battistelli’s cronyism.
When you consider that the annual budget of the organisation is around 2 billion euros, that should be a cause for public concern. There is no excess of money in Europe right now (Britain is furious this month over demands for a payment of an extra £1.7 billion to the EU) while staff at the EPO is grossly overpaid with virtually no oversight, as we showed in previous parts and demonstrated with strong exhibits of authority.
As readers can see, especially if they follow European media, this is another story that the mainstream media has completely ignored. Unbelievable perhaps, but more likely there is fear of covering it, if not some certain complicity (depending on the media owners).
Once again, German journalists have been fully informed about these matters but haven’t written a single line about them despite the fact that according to the German Press Codex
[PDF], “accurate informing of the public” is supposed to be one of the overriding principles of the Press (see preamble to Section 1). Perhaps the German media is preoccupied with other agenda. █
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The golden rule: those who have gold make the rules
Summary: How multinational corporations, joined by the corporate press that they are funding, promote a corporations- but not people-friendly patent policy in north America
Some time after a Reuters article that quotes mostly patent lawyers and speaks for large corporations (we saw it reposted in about a dozen large newspapers, mostly corporate press) the Wall Street media came out with a similar report, repeating some of it later and saying: “Companies that build their business models around aggressive patent litigation are finding that approach less lucrative after a U.S. Supreme Court ruling and stricter government policies.
“Here again we see how large corporations steer policy, irrespective of what the public wants.”“Patent lawsuits filed in the third quarter declined 23 percent from the second quarter, according to the industry coalition Unified Patents. About 88 percent of the drop is because of fewer cases by companies that make more than half their revenue from patent licensing and sue computer, electronics and software companies, the group said yesterday.
““The drop is real and likely permanent given the many structural changes to the patent system and patent litigation over the past couple years,” said Adam Mossoff, a law professor at George Mason University in Arlington, Virginia.”
The site of the CCIA says that articles like these are not helping. They help large corporations, that is for sure. The corporate media typically pushes these talking points. “Alice is helping get rid of some bad patents, but those are just a drop in the bucket,” says Matt Levy, who added this cartoon.
Professor Geist, in the mean time, explains how corporate Canada (his phrase) is interfering with patent reform. To quote: “The Internet Association, a U.S.-based industry association that counts most of the biggest names in the Internet economy as its members (including Google, Amazon, eBay, Facebook, Netflix, and Yahoo), recently released a policy paper on how Canada could become more competitive in the digital economy. The report’s recommendations on tax reform generated some attention, but buried within the 27-page report was a call for patent reform.”
Further down he says: “Yet despite the opportunity to give the green light to combat patent trolls, the Canadian business community urged caution. According an internal summary document on the discussions, Cisco warned that the reforms “could do more harm than good.” Jim Balsille, the co-founder of Blackberry, indicated that he supported the intent of the patent troll reforms, but cautioned about the need to get the details right. The Canadian Chamber of Commerce also expressed concern with the reforms, arguing that the measures could legislate against legitimate assertion of patent rights and that they could create a chilling effect.”
Here again we see how large corporations steer policy, irrespective of what the public wants. Civil disobedience may be in order and in TechDirt there is a new article about those who knowingly and deliberately ignore patents that do not deserve respect or, conversely, those who insist that invalid patents can be infringed on. This system is rigged and it need to be toppled. █
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