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Željko Topić Attacks EPO Staff for ‘Daring’ to Legally Challenge the EPO’s Management Over Its Gross Abuses in Europe

Posted in Europe, Patents at 3:08 pm by Dr. Roy Schestowitz

“I hope that German police will arrest this corrupt Balkans gangster [Željko Topić] and transfer him to Croatia for trial soon” –Rikard Frgačić, an early victim of Topić (in Croatia)

Summary: Benoît Battistelli’s right-hand man, Željko Topić, is under the false impression that yet more threats against staff of the EPO will help contain the crisis rather than further inflame it

Željko Topić must never have heard of or learned about the Streisand Effect. He and his circle of bullies (which includes several people and is headed by Battistelli) just don’t know a thing about crisis management.

Topić is finding himself in the shoes of Richard Nixon (recall Watergate), falling deeper into the mud at every step as he attempts to cover up the abuses, usually with even worse abuses than before.

Based on this letter just published by IP Kat, Topić and by extension the EPO’s management as a whole decided continue with aggression, having refused to conduct some kind of peace negotiations with the union.

“Topić has quite a history bullying his critics in his home country, Croatia, only to formally lose against them (after costing them a lot of money, agony, and several years in court.”The management’s aggression shows poor taste and zero tact. Over the past year or two the name of the EPO have been associated with negative things and the reputation is thoroughly tarnished; rather than respond politely and calmly the management chose to become even more aggressive, proving and at times further legitimising their critics’ gripes. So they really think that more threats are going to be constructive and actually help end the revolt? Of course it is only going to inflame (and get involved) more members or staff and ultimately serve to discredit the abuser, proving yet again that this circular and wide-ranging cycle of gagging/muzzling/censorship by retribution (or threats thereof) remains impractical and counterproductive. It doesn’t even work because despite threats from Battistelli, SUEPO is back to publicly posting new material today (see the SUEPO site for updates).

Topić has quite a history bullying his critics in his home country, Croatia [1, 2, 3], only to formally lose against them (after costing them a lot of money, agony, and several years in court [1, 2, 3, 4]). Strategic lawsuit against public participation, or SLAPP, is what this strategy is best known as.

Here is the latest from Topić and Raimund Lutz, another member of Battistelli’s mob:

Your rights
To all staff 
It has been recently brought to our attention that colleagues who turn to SUEPO for their pending legal cases against the Office are asked by SUEPO to sign a standard agreement in order to obtain financial support for the lawyer’s fees. 
Out of its duty of care towards EPO employees, the Office requested an external legal advice to assess the conformity of this agreement to the applicable national law and has concluded that it does not fulfil the required standards of legality. 
Unions may be entitled to provide legal support to colleagues and to propose standard contracts to that effect. However, such contracts must comply with the applicable law and basic fundamental rights as recognised in all European countries and under general principles of law. 
More specifically, several clauses of this agreement seem to be against good faith and/or national law under which such contract is signed and are thus unlawful and void. 
For example, Article 13 of the agreement reads as follows:

‘Where an external lawyer has been retained, as defined above,

  • (a) The Applicant shall at all times entrust the whole procedure to the lawyer, either directly or through SUEPO’s Legal Advisor.
  • (b) The Applicant shall at no time communicate directly with the Office on matters concerning the litigation without the prior and express approval of the external lawyer or the Legal Advisor.
  • (c) If the Applicant fails to meet the two requirements (a) and (b) above, financial aid by SUEPO may be revoked at any time and stage of the procedure.’
This standard clause prohibiting the staff member from communicating with the administration and therefore from taking any steps without requesting the express prior permission of SUEPO or SUEPO’s lawyers restricts unlawfully the staff member’s freedom of self-determination of his/her own case, infringes basic principles of the Law on general terms and conditions of employment, restricts his/her freedom of communication and constitutes an infringement of basic rights of occupational freedom in a dubious way. 
In case such unlawful clauses are used to block the possibility of amicable settlement or to exercise pressure to file further unjustified or unwanted litigation, this could be considered detrimental to the general interests of justice as well as an infringement of basic human rights of the staff member.
As a result, staff may consider contesting such contracts as void. 
In view of the above, the Office recommends staff to check with independent external lawyers of their choice the specific agreements they are asked to sign before doing so. 
If staff members are already engaged under such contract, they are in the same way and to the same extent also invited to check the lawfulness of the invoicing (proportionality of invoice against services, applicable fees under national law) as cases of overcharged legal fees/ invoices came to the attention of the Office. 
The Office’s services remain at the staff’s disposal for confidential consultation in case colleagues have already signed such documents and are not certain about the exact legal and financial obligations they have assumed from them. In such a case please contact the Conflict Resolution Unit.
Željko Topić
Vice-President DG 4
   Raimund Lutz
   Vice-President DG 5

As Merpel points out, “the EPO urges its litigious colleagues to take great care to guard against the breach of its human rights by staff union SUEPO. Both real and fictional Kats have memories that are admittedly fallible, but Merpel has this vague recollection that EPO’s concern for human rights has been demonstrated more vividly by its defiance of them than by their protection. Was this organisation not called to account earlier this year by a Dutch court, in a judgment that the EPO ignored, trumpeting its immunity from national law? Yet it is the very same national law to which the EPO now, extraordinarily, turns.”

Watch this space for follow-ups as so far this month we have been writing about the EPO more than once per day. It’s only getting worse for them by the day. Battistelli’s EPO is a force of occupation (by corporate interests), much like TPP. People are clever enough to see this and there is hard evidence becoming available. If any of our readers has the EPO’s “Closer contacts with major applicants” document, please consider anonymously leaking it to us. We have some important articles on the way.

Media Reports Based on New Patents Suggest That Microsoft Continues to Attack Google and Android/Linux, Trying to Tax and Delete Android

Posted in Deception, GNU/Linux, Google, Microsoft, Patents at 12:28 pm by Dr. Roy Schestowitz

Embrace and Extend
Credit: unknown (Twitter)

Summary: Reports and patent applications serve to show that Microsoft not only tries to infiltrate (“embrace”) Android to put its apps there (“extend”) but ultimately to delete (“extinguish”) Android


Like rabbits love snakes.

Microsoft is open…

Like a bear trap.

Microsoft is still trying to delete Android from Android phones, based on speculations such as this new one, citing a patent application from Microsoft, a company with financial troubles whose last remaining chance may be playing dirty, even blackmailing companies (using patents) into pre-installing Microsoft software. To quote the report:

Earlier this year, Microsoft announced a seemingly strange partnership with Xiaomi for beta testing Windows 10 mobile. The company proved that it can easily install a Windows ROM on an Android device, suggesting in the future it might decide to compete against Google this way. Rather than launch new Windows hardware, Microsoft might one day provide just the software that would make possible installing Windows on any Android handset.


Titled User Selectable Operating Systems, a new patent application published a few days ago describes smartphones and tablets that would let users select what operating system to boot.

Microsoft’s technology would let phone makers preinstall multiple operating systems on a device in a compressed form, with the user able to select which operating system he or she would like to boot. For example, a phone could have Windows 10 and Android ROMs – though the patent doesn’t explicitly mention any of them – and users would be able to select which OS they prefer and perform a full install for one of them. There would also be the option of deleting the others.

Microsoft is also using patents against Android, still. CBS continues to spread the sanitised take from Microsoft’s Mouth on the latest example of Microsoft racketeering. Is nobody paying attention to what Microsoft does to Android these days, other than "embrace, extend, extinguish"? ASUS is just the latest victim among several (after Samsung, Kyocera, and Dell).

Microsoft hates Linux, Android, and Free software (especially copyrleft). It feels this way and it shows it every week. It takes a blind man’s wishful thinking to pretend otherwise.

Commenters Provide Possible Explanations for Mr Van der Eijk Being on Unlimited Sick Leave

Posted in Europe, Patents, Rumour at 12:01 pm by Dr. Roy Schestowitz

Wim Van der Eijk

Photo from EPO.org

Summary: Rumours are swirling around Wim Van der Eijk’s absence, suggesting that he too may be a victim of Benoît Battistelli’s iron fist

THE EPO is out of touch and Van der Eijk may be out of work, based on the latest rumours.

“Still it is not clear what are the long term plans as a move would lead to mass resignations from DG3, replacing DG3 with the UPC appears to be impossible without a diplomatic conference?”
Several days ago we wrote about Van der Eijk's unlimited sick leave, which seems likely to have little or nothing to do with sickness (as we explained yesterday). As Chairman of the Enlarged Board of Appeal (EBoA) and DG3 VP, Van der Eijk is probably the only remaining potent threat to Benoît Battistelli because the boards are, in principle, independent from Battistelli’s corruptible EPO (in practice Battistelli just breaks the rules).

Over at IP Kat we are seeing some interesting comments. Among them:

Mr Battistelli’s plan:
Get rid of the present VP 3,
Introduce “his” reform of the Boards of Appeal;
Install there his choice of new VP3.
The new chapter in the EPOsaga: “Taming the boards”
The present VP3, Mr Van der Eijk, is on unlimited sick leave and thus out of function. Nervous breakdown? Most likely.

Another comment says:

According to what I have heard from multiple sources the move of DG3 is not for reasons of independence, but simply retaliation for having angered the top management, mainly by R19/12 and refusal of the enlarged board to agree to the dismissal of the DG3 member under investigation.

Still it is not clear what are the long term plans as a move would lead to mass resignations from DG3, replacing DG3 with the UPC appears to be impossible without a diplomatic conference?

Also quite obviously the german delegation in the AC would be strongly against weakening Munich as Europe’s patent capital, so all those plans might go nowhere as the other delegations will be very reluctant to outvote Germany in that matter.

Perhaps the best possible explanation is this:

1) EPO Enlarged Board tells Chairman: “disobey President when necessary”

The European Patent Office (EPO) Enlarged Board of Appeal (EBA) has issued an interlocutory decision in case R2/14

2) The present VP3, Mr Van der Eijk, is on unlimited sick leave and thus out of function.

who would ever think that there is any connection between 1) and 2)

One can see more context in the threads, but most comments are of no relevance to this. We kindly ask anyone with information to conside contacting us anonymously. We really wish to get to the bottom of this and end the uncertainty.

“The EPO should be a member of the Council of Europe,” Florian Müller wrote today, “but it’s not because it wants free rein to violate human rights.”


With Software Patents in Europe (and Pushes for the Same Thing in Australia and India) Patent Trolls Now Come to Europe, Attack Android/Linux

Posted in Australia, Europe, GNU/Linux, Google, IBM, Microsoft, Patents at 3:49 pm by Dr. Roy Schestowitz

The United Kingdom — and by extension Europe — now a platform of choice for some major patent trolls

Bridgewater Hall

Summary: Worst-case scenarios are becoming a reality as Android backers officially attacked by patent trolls using standard-essential patents in London, England

SOFTWARE DEVELOPERS across Europe hate software patents. Ask them. Seriously, just ask them. Programmers in general (with rare exceptions) don’t want software patents; they already have copyright law (or copyleft for Free software). It helps protect them and assert that their own work cannot be exploited/ripped off. That’s just the nature of software, which is a lot like poetry or musical compositions.

The Danish creator of Ruby on Rails (RoR), David Heinemeier Hansson, wrote the other day: “Software patents are a racket used by trolls/BigCos to shake down/stifle competition. If you file for patents, you’re arming the racketeers.”

“Programmers in general (with rare exceptions) don’t want software patents; they already have copyright law (or copyleft for Free software).”As we have shown here before, no software patents are “good”, hence there is no such thing as “bad patents” or “bad software patents” (a term often used by apologists of them, such as IBM). Patents in the hands of “good” companies are not secure either; they can be sold and fall into hostile hands. See Sun and Oracle for example (Sun patents are now being used against Linux/Android). See Novell’s patents, which fell into Microsoft’s hands through CPTN. There are many more examples like that.

“Software patents are a racket used by trolls/BigCos to shake down/stifle competition. If you file for patents, you’re arming the racketeers.”
      –David Heinemeier Hansson
RoR’s creator, a hugely popular developer (not just in Europe), said a couple of days ago: “Shame on Ericsson for arming a patent troll with a large stockpile of outdated yet weaponized patents for a cut” (he spoke about Unwired Planet).

For those who are not familiar with Ericsson and Unwired Planet, here is an article from 3 days ago. It makes everything quite easy to follow: “Unwired Planet Inc. has 16 employees and no products. What it does have is a portfolio of more than 2,000 patents, mostly acquired from Ericsson AB, which it says on its website are “considered foundational to mobile communications.” The Nevada-based firm wants more than just recognition.”

So a European company, Ericsson, is now the motor of patent trolls, much like Nokia after Microsoft took over. How did this happen? Well, we covered this over the past few years and we warned that this was going to happen, despite software not (officially) being patentable in Europe.

London is now serving as the venue for patent trolls, attracting the litigation ‘business’ just like Eastern Texas. Huge damages are at stake and the target is Free software, not some proprietary software, hence free distribution itself is being threatened. Believe it or not, this may have the same impact on Free software on phones in Europe as the FCC on Free software on routers/hubs in the US. The Ericsson-backed troll is now attacking Android (Free software and Linux-powered). Making it impossible to dodge the lawsuit, we are dealing with standard-essential patents (SEP) here, meaning that in order to conform with standards one must infringe. The patents boosters say that Huawei, Google and Samsung are the target of the lawsuit. To quote: “Tomorrow Unwired Planet is scheduled to begin a series of face-offs against Huawei, Samsung and Google at the Patents Court in London. At issue are alleged infringements of five standard essential patents (SEPs) owned by the NPE that were transferred to it as the result of a deal done with Ericsson back in 2013.

“London is now serving as the venue for patent trolls, attracting the litigation ‘business’ just like Eastern Texas.”“Over on the ARS Technica website, Joe Mullin talks about coming to a UK court being “a high-cost, high-risk scenario that’s unappealing to trolls”. He’s right. And that’s why trolls – whose business model is based on asserting poor-quality patents to leverage the high cost of US patent litigation to extract relatively low-cost, pre-trial, licensing-based settlements from alleged infringers – would never take a case as far as a courtroom in the UK (or anywhere else for that matter).

“Unwired Planet, though, is not a troll. It is a patent licensing business looking to secure a global agreement from entities it believes are infringing high-quality SEPs. It may not like trials (who does?), but it is not afraid of them because it feels it has a good chance of winning and is willing to pay to find out if it is right, especially as the ultimate prize is potentially a collection of eight or even nine figure global licensing deals. Seen in such a light, its choice of the Patents Court in London makes a fair bit of sense.”

The proponents of software patents, people such as IAM's biased (for their own financial gain) writers, helped patent trolls come to Europe. IAM said that “Unwired Planet patent suit in London against Huawei, Google & Samsung again shows Europe is now NPE venue of choice”. Patent Buddy, a more moderate voice, noted the importance of this: “Unwired Planet Will Fight SEP Suit Against Huawei, Google and Samsung in London, Not a US Court” (where this typically takes place).

It’s easy to see what patent lawyers find desirable here. They can make money from the legal aftermath and the proceedings themselves, irrespective of the outcome (who wins). Now that there are some software patents in Europe, authorised by the corrupt EPO, large companies are using loopholes and cheats to get more of them and then sue. As Patently German clarified the other day, “the German court essentially follows the EPO, the language even being a bit more generous” (but it’s the EPO that led to it, even back in Brimelow’s days).

“It’s easy to see what patent lawyers find desirable here. They can make money from the legal aftermath and the proceedings themselves, irrespective of the outcome (who wins).”Germany’s exceptional lenience on software patents granting was mentioned here this morning and it is likely to be a topic we will revisit in the near future. Jonas Bosson (FFII Sweden) wrote that “#TPPA is “all fields of technology” a trick force patents on abstract matters, such as math and data processing? http://en.swpat.org/wiki/Trans-Pacific_Partnership_Agreement …”

These terrible ‘treaties’ play a growing role in corporate takeover of Europe and based on this latest update, “The UK has joined the Unified Patent Court (UPC) protocol agreement, representing a ‘milestone’ for the country.”

Yes, a ‘milestone’ for corporations taking over the country and most of the continent it’s technically a part of.

The FFII’s President expressed his concerns earlier today by stating: “FSF, despite its 30 years, still spending too few of its resources on fighting software patents and the unitary patent court #FSF30″

Australia Dubs It “Innovation Patent System”

This whole software patents and ‘treaties’ chaos (laws rewritten in bulk) is becoming a growing problem not just in Europe but also in Australia, where activists like Sturmfels (mentioned before in [1, 2, 3]) oppose a push for software patents. The patent maximalists ridicule the likes of him with insulting weasel phrases and belittling words. To quote a new blog post titled “‘Free Software’ Advocates Aside, Submissions to IP Australia Overwhelmingly Support Innovation Patent System”:

Needless to say, such comments lack anything resembling either evidence or detailed reasoning. They also fail to address the fact that abolition of innovation patents would affect all industries, and not just the ‘software industry’ (whatever that may be), including those represented by other submissions in support of innovation patents. In any event, these near-identical submissions are so clearly the result of an orchestrated campaign that they can hardly be regarded as constituting independent contributions to the consultation process. Furthermore, they are at odds with the submission made by BSA | The Software Alliance as noted above.

Other parties making submissions in favour of abolition of the innovation system include Melbourne-based free-software advocate Ben Sturmfels, on behalf of a group of nine like-minded individuals, and Open Source Industry Australia Ltd, which argues that ‘abolition of the innovation patent system will be an important first step towards delivering a more efficient, effective and equitable patent regime for Australia’.

Even Microsoft front groups like the Business Software Alliance (BSA) play a role in the lobbying. To quote:

“BSA | The Software Alliance, which represents the global commercial software industry (counting among its members Adobe, Altium, ANSYS, Apple, ARM, Autodesk, AVEVA, Bentley Systems, CA Technologies, Cisco, CNC/Mastercam, DataStax, Dell, Intel, Intuit, Minitab, Oracle, PTC, salesforce.com, Siemens PLM Software, Symantec, Tekla, The MathWorks, and Trend Micro), and which argues that the innovation patent system should be retained, and improved in line with a number of the recommendations in ACIP’s original report”

The above are all proprietary software giants, hardly small businesses. It’s clear whose interests are served by monopolies on algorithms.

IAM Not Speaking for India

IAM is meanwhile returning to the situation in India, claiming that India’s small businesses want software patents (citing this article which doesn’t really focus on patents) and saying in Twitter: “Limited scope of patent protection, rather than cost, is what is driving high-tech Indian SMEs out of the country” (total nonsense).

“Microsoft reportedly lobbies regarding the UPC in Europe, despite being a foreign company with no personal affection for Europe.”The patent lawyers (like the people who operate IAM) want patent trolls and large corporations that hire them to just carry on with patent chaos because patent lawyers profit from it. This is true not only in Europe but also in the US. Watch how IBM is lobbying for software patents in just about every country, India included. The same goes for Microsoft and other patent aggressors. Microsoft reportedly lobbies regarding the UPC in Europe, despite being a foreign company with no personal affection for Europe. Microsoft is not a person. It is also treated like a V.I.P. by the increasingly corruptible (up for sale to corporations) EPO.

New Information on Limbo in the Enlarged Board, Courtesy of Illegal Actions by the EPO’s Benoît Battistelli

Posted in Europe, Patents at 2:22 pm by Dr. Roy Schestowitz

Revolt is much needed and justified right now

Software patents protest against EPO

Summary: Battistelli’s bullying of people whom he is not even allowed to bully turns out to have gone on for a lot longer than promised, and there is no sign of light at the end of this tunnel

Battistelli is clearly out of control. What we wrote last week about the EBoA (enlarged board of appeals) was likely correct, based on what we are now learning in private (more on that another day). To make matters worse, the illegal suspension of a judge turns out to be an almost eternal limbo. It’s like garden leave, only much worse and nearly perpetual. As IP Kat put it this morning: “Following interventions from the Enlarged Board, external national judges and many other quarters, the Administrative Council took the matter in hand, formally suspended the Board Member until 31 March 2015, and promised a speedy and thorough investigation of the matter. ‘Speedy’ means different things in Eponia than where Merpel lives, but six months after that March date it appears that there has been progress of a sort.

“Among the items listed on the Agenda for the forthcoming AC meeting is this disciplinary case. The AC will review the allegations, then review the defence and response submitted by the person involved, and will then apparently review the decision of the Enlarged Board in this matter before coming to a decision.

“Battistelli just wants total control and he cannot stand the idea that Dutch courts deem his actions illegal or that judges whom he is not authorised to punish (because they’re structurally independent) say the truth about him and his corrupt reign.”“This could mean what is says, i.e. that the AC will come to a disciplinary decision this month. However, watch this space, as Merpel has reason to suspect that the story will not come to a neat close, or at least not this month.”

Well, the AC’s Jesper Kongstad is in pretty much in the pocket of Benoît Battistelli, who suspended this judge, and he is also connected to Zeljko Topić, whom the judge is alleged to have spoken about before he got illegally suspended. What kind of ‘justice’ can one expect to come out? As Merpal noted later in her analysis: “The EPO management has been seeking to reform the Boards of Appeal, and apparently a necessary part of this project is to get them out of Munich. The fact that the more senior members have family ties there, children in school and college, and may ultimately be forced to resign if there is a long-distance move, is neither here nor there (or is that the whole point?). Regardless, it was long understood that Mr Battistelli favoured sending the Boards to Berlin, but the little birdies hiding from Merpel in the trees along Erhardtstrasse are chirping that the new plan is to send the Boards to Vienna. Nice city to be sure, but it’s a long commute after dropping the kids to school in Munich each morning. Merpel will keep you posted.”

Battistelli just wants total control and he cannot stand the idea that Dutch courts deem his actions illegal or that judges whom he is not authorised to punish (because they’re structurally independent) say the truth about him and his corrupt reign.

Watch what commenters are going to say in the coming days at IP Kat. This might help provide new (but potentially unverifiable) information from within the EPO, currently one of Europe’s most corrupt institutions. Demonstrations and strikes are a non-issue, except when the staff union gets gagged by menacing threats from Battistelli.

Dr. Ingve Björn Stjerna Explains Why the UPC (“Unitary Patent“ System) is an Undemocratic Sham Whilst UPC Silently Advanced by Patent Lawyers and Politicians

Posted in Europe, Patents at 6:44 am by Dr. Roy Schestowitz

The international community, including the British and European communities but excepting international corporations, their patent lawyers and politicians whom they shrewdly lobby, is intentionally being kept in the dark

Manchester Community College
Manchester Community College at night

Summary: European patent laws are being covertly overridden so as to allow broader scope of litigation, higher financial damages, speedy injunctions, and even software patents; the European public is intentionally kept in the dark about it, hence kept unable to express scepticism or issue truly effective objections

WE recognise the fact that many of our readers these days work for the EPO. It is a European institution where secrecy prevails as it helps impede outside scrutiny (which is sorely needed). Other European institutions favour secrecy for the same reason (e.g. so-called ‘trade’ agreements). We started writing about the EPO because of lobbying for and emergence of software patents in Europe, well before the UPC (with prior names in the McCreevy and Barnier days) that ushers them in. As a software specialist myself, this affects me personally; as an activist, I know this affects many others, and not just in Europe. It is a huge injustice and it can potentially become a lot worse. Action right now is imperative because lobbyists are pushing very hard for the UPC and they try to shape it; this includes monopolists like Microsoft (based on last week’s Bloomberg report) — those that aren’t even European, let alone people (corporations are not people).

Dr. Ingve Björn StjernaSeveral weeks ago we wrote that "EPO Managers, Patent Lawyers, Commissioners and Other Non-Technical Personnel Tackle Democracy, Alter Laws in Bulk and in Secret". Dr. Ingve Björn Stjerna (shown to the left) has since then sent us two links, noting that he wrote about this subject in his reasonably recent papers. “I just read your above-mentioned blog post,” he wrote to me. “Specifically with regard to transparency and democracy in the UPC context, do you know my papers “Law-making in camera” (accessible here) and “The sub-sub-suboptimal compromise of the EU Parliament” (accessible here) from 2013? Having a look might be worthwhile.”

I spent this weekend going through his papers and I warmly recommend that every single EPO employee does the same. They’re informative and not too lengthy. The topic is relevant and timely. It’s not an externality; the overall outcome is the direct impact of those who are involved in the patent ‘industry’; it’s all about protectionism for corporations and it is against democratic values. It is antithetical to the core values of Western nations.

“It is antithetical to the core values of Western nations.”The author, whom we mentioned here earlier this year, describes himself as “Certified Specialist for Intellectual Property Law [from] Düsseldorf” and the abstract of his first paper about it [PDF] states: “As it is well known, the “unitary patent“ package has been adopted and now the ratification of the inter-governmental Agreement on the court system by a certain quorum of the Member States is necessary for the “unitary patent“ system to enter into force. Less well known is the fact that, during the legislative process, circumstances were withheld from the public which the political front apparently regarded as dangerous for the entry into force of the “legislative package”. An exemplary case is Council document 15856/11, an opinion of the Council’s Legal Service on the compatibility of the “unitary patent” court system’s amended structure with opinion 1/09 of the European Court of Justice (CJEU). Until very recently, this document was available to the public only in extensively blackened form. Requests for complete access to the document filed on the basis of EC Regulation No 1049/2001 were repeatedly refused on the ground that this could delay the ratification process in the Member States or even call into question the entry into force of the Agreement. The document, additional parts of which were made accessible to the public shortly before the publication of this article, shows why: In it, the Legal Service notes that the structure of the adopted court system may still violate European law. A report on the strange understanding of transparency and democracy exercised in the legislative proceedings for the “unitary patent” package.”

The second paper [PDF] has the following abstract: “As is well known, in its meeting on 11 December 2012, the European Parliament adopted the so-called “patent package”, consisting of the Regulations on the “unitary patent” and the translation regime while agreeing to the conclusion of an intergovernmental Agreement for the creation of a “Unified Patent Court System”. The “unitary patent” Regulation is based on a compromise proposal of the (former) Cyprus Council Presidency which was discussed by Legal Affairs Committee of the European Parliament in a special meeting on 19 November 2012 from which the public was excluded. An audio recording of the meeting, which recently became available, shows the motives for the acceptance of this “compromise” which one of the rapporteurs called “sub-sub-suboptimal” and “a bad solution” there. The course of this meeting shall afterwards be described and assessed in more detail.”

“The so-called “patent package” is just another name for much of the same Trojan horse, which had various different names over the years (making it harder to find and grasp older criticisms thereof).”The so-called “patent package” is just another name for much of the same Trojan horse, which had various different names over the years (making it harder to find and grasp older criticisms thereof). Like with many secret ‘trade’ (corporate sovereignty) and censorship/surveillance bills, there is a notorious tendency to change the name of what’s being attempted (for passing), primarily in order to dodge negative associations and injurious publicity. These can be overnight stunts. Now it is known as UPC, but tomorrow politicians might decided to rename it again. Any politician knows this trick; another common trick is to wrap some piece of legislation or law with “pedophiles”, “terrorists”, “pirates”, and “drugs”.

Nobody (among the public) voted for the UPC but patent lawyers (as in “law”) ignore the law and rush ahead. To quote a British law blog: “The UK Government has now selected a location just on the edge of the City of London for the EU’s Unified Patents Court. This will house the London section of the Central Division, with specific jurisdiction in the life sciences areas, a major contributor to the UK economy. With this decision the Unified Patents Court looks one significant step closer to being a part of IP strategy for all innovative businesses wishing to do business in Europe.”

To quote another British law blog: “With the new court term looming, last week IPSoc, the society for junior IP practitioners, hosted its final educational event of 2015, “The UPC: A Panel Debate”. For those readers unfamiliar with the society, IPSoc is an intellectual property society run by juniors, for juniors (and for a nominal annual fee). The organization arranges four educational events, four social events and one fancy annual dinner each year for its members (which the AmeriKat was lucky to attend a couple of years ago).”

“Patent lawyers are understandably salivating over UPC (many more lawsuits with higher damages, from which they derive a loot’s share) and with very few exceptions they are constantly fast-tracking it, hoping for acceleration in a “self-fulfilling prophecy” fashion (increasing the complexity or cost of rollback).”Put in simple terms, AmeriKat (Annsley Merelle Ward, who likes to dissociate herself from her views), known to us for several years as IPKat‘s biggest software patents booster, pretends that the UPC is already in effect and is inevitably here. Patent lawyers are understandably salivating over UPC (many more lawsuits with higher damages, from which they derive a loot’s share) and with very few exceptions they are constantly fast-tracking it, hoping for acceleration in a “self-fulfilling prophecy” fashion (increasing the complexity or cost of rollback). They play a major role in giving momentum/inertia to politicians whose interests conflict with those of the public, which is mostly kept uninvolved (because it is uninformed, by design).

“The proposed Unified Patent Court fee for revocation proceedings is €20,000,” explains one patents-centric blog (of patent lawyers). “The EPO fee for opposition proceedings is €775. David Lewin expands on how and why you should be taking full strategic advantage of the EPO’s opposition procedure…”

To them it’s all about money. UPC means more power for large corporations and more money for lawyers who serve these corporations’ agenda (large clients pay the lion’s share of profit). At whose expense? European SMBs and European citizens at large. “And with it,” concludes the post, “completing the enhanced European patent system – will come the Unified Patent Court (UPC).”

Step by step they extinguish national sovereignty and abandon long-established laws, which were put there for a reason and evolved over time with public input and facts-based analyses (prioritising public interests, not private interests).

“This is the hallmark of an autocracy.”Why is UPC hardly mentioned in general news sites and newspapers? When did citizens ever vote on it, let alone been given the chance to vote on it (e.g. to oppose)? This is the hallmark of an autocracy.

“UPC will see major patent litigation,” explain patent lawyers, “which is resulting in a lot of ‘scaremongering’ going on” (well, obviously).

“EPLAW’s hon president Pierre Veron,” according to this, said that (probably paraphrased): “The first 4 or 5 preliminary injunctions under UPC will be issued quickly for legal certainty” (more injunctions, to whose advantage?).

Merck Sharp & Dohme’s James Horgan is quoted (or paraphrased) as saying that various “telecoms are most nervous about getting injunctions on preliminary actions under UPC [...] Opting out patents under UPC could be a ‘major headache’ [...] it won’t be patentees but law firms who shape the UPC system” (without even consulting the European public, which has nothing to gain from the UPC).

The patent lawyers are aided by their lawyer friends, who wear “politician” hats. “Ironically,” Managing IP (London-based) noted, “Commissioner EB [Elżbieta Bieńkowska] is from Poland – which has decided not to join the #UnitaryPatent (at least for now)!”

“It achieves the very opposite of competitiveness. It helps drive competition out of the market using patents.”Bieńkowska wrote: “Welcome Italy to #UnitaryPatent: a step further towards unitary protection of #innovation in Europe.#Competitiveness”

What is she talking about? It has nothing whatsoever to do with innovation and definitely not with competitiveness (the propaganda word used in europe.eu). It achieves the very opposite of competitiveness. It helps drive competition out of the market using patents. It harms European business. What was Bieńkowska thinking when she wrote this? Corporate tool or just gullible (or “useful idiot” as Stalinist Russia famously put it)? Other politicians, including some British ones like Lady Neville-Rolfe (Tory who fast-tracks/rams down the throats of Brits the UPC before consent is expressed or referendum takes place), are selling away democracy in Europe. It’s a horrible thing to witness, especially because many people don’t even know that this is silently going on. Passivity among the public, caused by lack of communication, drives the UPC. Managing IP joins the misleading “Competitiveness” chorus by writing: “EU Competitiveness Council to sign Protocol on provisional application of #UPC Agreement tomorrow http://www.consilium.europa.eu/en/press/press-releases/2015/10/1-compet-indicative-programme/ … (w/ Family photo!)”

The family of lawyers (politicians, patent lawyers etc.) is working hard to serve itself at the expense of European citizens, who are kept almost totally in the dark. Amid uncertainty and darkness, Germany, where much of the EPO is based, is now authorising software patents. To quote Patently German: “It is thus quite clear that the FCJ would not have accepted the patent application in its original wording, related to a mathematical method for the determination of the state of a (not further defined) object. Only the restriction of the method to the attitude determination of an airplane provides the required concrete technical application. Would the application also be allowed if the claims were directed not to the attitude determination of a real airplane but one simulated on a computer ? My guess is yes, it would, as in accordance with the rationale expressed by headnote c) of the decision a more reliable knowledge about the attitude of an airplane and thereby influence on the functioning of the attitude detection system (thus the relation to the purposeful use of forces of nature) is obtained also by performing the method of the invention on a flight simulator.”

German pundits say “on ruling by top German court” that “math method patent-eligible if related to using forces of nature” (that is essentially applicable to many if not most software patents, including those in my fields).

Welcome to ‘new’ Europe, where people have no say and corporations get anything they ask for. They even bypass European laws, or rewrite them in private to better suit their interests/convenience, driving competition out of the market and artificially driving up prices.

“They [EPO examiners] claim that the organisation is decentralising and focusing on granting as many patents as possible to gain financially from fees generated.” —Expatica, European Patent Office staff on strike


Article Explains Why SUEPO Went Silent Well Over a Week Ago: Nobody is Allowed to Talk to Journalists Without Permission From Battistelli

Posted in Europe, Patents at 12:49 pm by Dr. Roy Schestowitz

Intimidation and retribution tactics a new low for EPO

German paper on EPO

Summary: More threats from Benoît Battistelli (threats of termination and legal actions on top of it) help hide the abuses of Battistelli and his fellow thugs at the EPO

TOMORROW we have a very long post coming, regarding the EPO and the UPC. We have meanwhile been trying to figure out why the SUEPO’s Web site has been so quiet as of late and the answer can be found in recent articles. We belately caught up with them this weekend (my wife and I were on vacation at the time of publication).

This one recent article in German, similar to this one [PDF] which covers a recent controversy, makes the reason crystal clear.

Please bear in mind that my German is very weak, so not only my reading comprehension is limited; the translation too is incomplete and it goes like this:

Escalating dispute in the European Patent Office

A unionist fears for her job. Is she being made an example? The Patent Office is silent regarding the allegations.

By Thomas Magenheim-Hörmann

Munich – If staff were threatened with expulsion in a big German corporation/organisation, especially a senior trade unionist and council boss, the outcry would unquestionably be enormous. Although the European Patent Office (EPO) in Munich operates based on different standards, even there the story makes big waves. “I am to be terminated and in great danger,” says an employee at the centre of this situation. “I” is the council boss Elizabeth Hardon, also union chairman at the Munich-based union SUEPO and thus part of two organisations. There is a Dutch legal fight raging on for two years now — a dispute between management and staff, in which the gloves are drawn out.

At its centre is the French Office President, Benoit Battistelli, who reformed his extra-state authority with an iron fist. Once he even stopped a demonstration of the workforce. Then it was revealed that employees were spied on in the office using bugs and hidden cameras. SUEPO mails are censored. Now [Battistelli] goes after a unionist.

Recently, Hardon was summoned by an internal investigation department. Hardon should have a colleague present while being bullied. The “confidential and personal” invitation was made accessible by SUEPO, internally, before being publicised. Later, she also appeared on an external blog, bringing up SUEPO but wanting to have nothing to do with it. Thereafter, the unionist received a second letter from personnel manager Elodie Bergot, where her “reasonable steps” and “legal measures” were announced — those which one may translate as expulsion.

Hardon had violated confidentiality obligations, even if they related to their own personal matters. Hardon herself and SUEPO are now condemned to silence. Nobody is allowed to talk to journalists without permission from Battistelli. Disciplinary consequences would otherwise result.

Not all the ‘cows’ are at the office. “The search is only for a pretext justifying kicking them out,” says a patent examiner. He wants to remain anonymous. If Hardon must go, new elections for the council are due. “But who then will still be a candidate who is not fully compliant?” Asks the EPA staff. Anyone contrary [to Battistelli] is dumped — this is the lesson that should be taught here.

The Patent Office does not wish to comment on the case. It concerns an ongoing process and about this one EPO can basically say nothing, regrets a spokeswoman. The same applies to a personnel manager at the council. Battistelli himself insisted on a previous occasion against criticism of his style of reform. He only set up what was commissioned by the 38 European member states of the Patent Office. Workers speak against persistent harassment of critical minds and even censorship. The Office insists on home visits to sick employees, which would be impossible under German labour law. But the office is not subject to national law. Therefore, it also ignored the ruling of a Dutch court, which had criticised various violations of the law in the course of reforms.

What remains is a requirement of the Bavarian Data Protection Officer Thomas Petri [and referral] to an external data protection for the office. A heavy burden is on the unionist when it comes to talks between SUEPO, which seeks official recognition of the union. For such a dialogue to become possible, the Patent Office (38 nations) and Battistelli recently committed, so as to restore the industrial peace in the house. Battistelli now shows, as in the example of Hardon, of how little seriousness this was for him to have trade unionists shake hands, says an EPA employee. The EPO staff will be back to monthly protests against the reforms and the methods by which they are to be enforced, says [one person] defiantly. Whether [Hardon] is fired Battistelli can decide, so any resistance breaks [the deal], estimates another insider. One way or another, a deplorable finale promises to take place at the big authority on German soil.

For anything that can be cited as fact, please refer to the original article in German, not the above, as the translation is of low quality and almost definitely contains serious inaccuracies (especially in particular sentences).

Microsoft Continues to Extort Linux and Android OEMs Using Software Patents, This Time ASUS (Forced to Pre-Install Microsoft Spyware With OOXML)

Posted in Deception, GNU/Linux, Google, Microsoft, Open XML, Patents at 10:06 am by Dr. Roy Schestowitz

Embrace and Extend
Credit: unknown (Twitter)

Summary: A roundup of news illustrating that Microsoft is still very much in a total war against Android, (mis)using federal regulators and even software patents to get its way

MICROSOFT’S attacks on Linux never stopped. Anyone thinking otherwise must not have paid attention. To make matters worse, Microsoft is manipulating the media into pretending that “Microsoft loves Linux” and that there is “peace”. In this post we are going to share some stories of interest to assure readers that nothing has changed except Microsoft’s rhetoric and some of the attacks have become more discreet.

“The FTC is wrong about antitrust fears over Android,” writes Microsoft's booster Bill Snyder in IDG, summarising it as follows: “Microsoft can’t develop a successful mobile operating system, so it’s making a crybaby case against Google”

If Android (Free software) is an antitrust violation, what does that make proprietary software? Microsoft and its proxies, as we have shown over the years, were behind these complaints. Remember that back in the SCO days, i.e. around 2003-2005, the Microsoft minions (and few others) tried to frame the GPL itself as anti-competitive. They failed, but it took time and cost money. One of the first questions that the FTC must tackle here is, who is behind the complaints? They may find that it’s little more than a Turf War. (Mis)Using Feds as pawns in the battle (a Turf War), as in using the government to derail one’s competition (even Free software), should be a crime. It is a waste of resources. When the media claims that Microsoft and Google now have “peace” (on patents) be sure to reminder the reporters of what Microsoft has done to cause Google (and Android) antitrust trouble. It is very well documented and we wrote over a dozen articles touching on this subject alone.

“Tell Mary Jo Foley that this is not a “deal” but an extortion.”As we noted the other day (and many people read this article, some news sites even linked to our analysis), Microsoft under Nadella is no different from Microsoft under Ballmer, at least when it comes to patents. The monopolist, under Nadella specifically, has already attacked Samsung, Kyocera, and Dell (over Linux/Android). Where is the love? Does Microsoft have patent peace with Android now? No, of course not. There is no peace even with Google, there is just a settlement in the Motorola case. Microsoft is leaving Motorola aside and is just attacking the OEMs instead, continuing with this latest assault on ASUS. Microsoft is still blackmailing companies, using patents, into bundling Microsoft spyware with non-standards (lock-in). This is extortion. Tell Mary Jo Foley that this is not a “deal” but an extortion. Tell this to others who believed that we have a ‘peace’ for our time after Google and Microsoft reached one settlement (regarding Motorola).

Android is being infiltrated by Microsoft now. It wouldn’t have worked without patent extortion. As Microsoft’s Mouth (Mary Jo Foley) put it: “As nearly two-dozen Android, Chrome OS and Linux vendors are doing, ASUS seemingly is licensing Microsoft’s patents to cover anything that is in those operating systems which potentially infringes on Microsoft’s intellectual property.

“But ASUS also is agreeing, as part of the deal announced today, to pre-install unspecified Microsoft “productivity services” on Android smartphones and tablets. When I asked, a Microsoft spokesperson said the services included the Microsoft Office suite.”

“Patents are being used for leverage.”So Microsoft is embracing and taking over Android inside ASUS. Remember the ASUS EEE? It used to run GNU/Linux before Microsoft intervened. Microsoft calls it EEE, which also stands for “embrace, extend, extinguish” — Microsoft's currently principal strategy against Android. Mark Hachman chose the headline “Microsoft strikes a deal with Asus: We won’t sue if you put Office on your Android devices” (we fought for years against it, starting with the Microsoft/Novell deal). Untimately what we are seeing it is a strategy that first became publicly known after Microsoft had done this to Samsung (earlier this year). Threatening to sue companies if they don’t serve Microsoft’s agenda is not a new strategy even when it comes to GNU/Linux as a whole, Android set aside. See the Microsoft/Novell deal (2006). Patents are being used for leverage.

The media has hardly covered this scandal. Reuters is busy writing about the Microsoft/Google settlement and Microsoft propagandists are everywhere to be seen. Why does ECT, for example, keep quoting its occasional writer Rob Enderle as an ‘expert’ regarding Microsoft, which paid him for Linux FUD? It’s gross. ETC talks about “Rob Enderle, principal analyst at the Enderle Group.” It’s a one-man group and he gets paid by ECT and Microsoft. Why is he approached for his views on Android and Google? Do they think the readers are this dumb? Here is some promotional Microsoft messaging found therein: “There’s strong, scientifically verifiable evidence indicating Microsoft’s move to join the rest of the tech world in open source and collaboration was propelled by a compelling force: the Nadella effect. While tech analysts and reporters had fun with CEO Satya Nadella’s odd “cloud first, mobile first” mantra last summer, his much less concise — yet more encouraging — message has been one of collaboration, and meeting consumers on their terms. For example, Microsoft pushed Office 365 to all major platforms.”

ECT quoted Enderle not just once but at least twice last week, in both cases regarding Linux matters, e.g. in this article titled “Microsoft Pushes Deeper Into Linux, Containers, IoT”. In it, ECT asks Hilwa, who used to work for Microsoft, about Microsoft and Linux (no disclosure in the article about his Microsoft background). Rob Enderle, who also worked for ECT and is notoriously close to Microsoft, is simply described by ECT as “Rob Enderle, principal analyst at the Enderle Group.”

“Rob Enderle, who also worked for ECT and is notoriously close to Microsoft, is simply described by ECT as “Rob Enderle, principal analyst at the Enderle Group.””What a sham. Richard Adhikari basically interviews Microsoft moles regarding Linux when he’s not busy writing his lots of anti-Android articles (usually regarding security). Al Hilwa and Rob Enderle being his “sources” tells us a lot more about him, perhaps his agenda too. Well, to be fair and to give him the benefit of the doubt here, quite often when it comes to so-called ‘analysts’, everywhere you look it’s proprietary software (e.g. Microsoft) and its minions. Even Dana Blankenhorn, who used to cover Open Source for ZDNet (sometimes being an apologist for Microsoft), has just said in the financial press that “Microsoft has stopped fighting with open source” .

Well, that is complete and utter nonsense. It didn’t stop, Microsoft still does all sorts of things to both Linux and Android. Other financial press says that Microsoft “has finally succumbed to the free OS Linux” because Microsoft copies Linux code, raising all sorts of GPL-related questions and potential issues [1, 2].

the bottom line is, don’t believe for even a second that Microsoft is some gentle aging giant. It’s a vicious abusive monopolist, as its actions against Android (in particular Android because of the platform’s market share) continue to demonstrate.

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