Bonum Certa Men Certa

Out-of-Control Battistelli Repeatedly Breaks Office Rules and EPC Rules, Then Tries to Change the Rules (Retroactive Legalisation)

Michael Hayden and Battistelli
Utter disregard for the law a privilege of few



Summary: A look at the abuses from Battistelli, who is breaking rules in a pathetic effort to gag critics, one day ahead of a third 'trial' against a truth-telling judge

THE absurdities at the EPO are somewhat reminiscent of GCHQ. Not only are rules being broken (knowingly and consciously) by management. The management tries to hide evidence of this and if the evidence leaks out to the world, then a campaign begins to try to retroactively authorise the abuses. Such is the nature of the EPO under Battistelli and the following relatively new text helps explain this from start to finish (which might be tomorrow or a few days later).

Here is some background information:

Double jeopardy is a procedural defence that forbids a defendant from being tried again on the same (or similar) charges in the same case following a legitimate acquittal or conviction. In common law countries, a defendant may enter a peremptory plea of autrefois acquité or autrefois convict (autrefois means "in the past" in French), meaning the defendant has been acquitted or convicted of the same offence and hence that they cannot be retried under the principle of double jeopardy that is mirrored by the “non bis in idem” principle applied by the ATILO in respect of disciplinary cases.


"EPO Law," on the other hand, is full of abuses. Consider 'Decision 1' Art. 23 1/15 (as HTML) and another which coincided with Board 28's letter to Heads of Delegation of the Administrative Council. Here is the PDF of 'Decision 2' Art. 23 2 /15. As we have been noting here for over a week, 'Decision 3' Art 23 ?/16 is on its way. To quote the above sources: "Hearing [will be] open to the public. [...] on 14 to 16 June 2016" (apparently because the EBoA insisted on it).

The above sources give an explanation of the situation as follows (doing a good job at highlighting the Nixonite behaviour of Battistelli amid Watergate):

Third time lucky?



Towards the end of 2014, the Investigative Unit carried out covert surveillance operations on a computer on the first floor of the Isar building as reported in the press and Internet blogs some time later. This computer is public: it was used by visiting delegates and patent attorneys. Subsequently a member of the Boards of Appeal was accused of “anonymous defamation1” of Mr. Topić (VP4) and served a “house ban” (technically equivalent to a suspension). The result was a storm of protest2 and quite rightly so. The Office does not have the right to spy on computers used by Council delegates and third parties. Investigating DG3 members further infringes their independence. For the same reason (infringement of their independence) Mr. Battistelli does not have the authority to suspend DG3 members. The latter aspect was more or less covered-up by the Council retroactively (sic) approving of the action. The alleged victim of defamation, Mr. Topić, appears to have a significant number of cases slowly working their way through the Croatian legal system. Interestingly, Mr. Topić lost his defamation complaint against a former co-worker despite the very serious nature of the accusations that she raised against him3. Hence it is difficult to determine what exactly can be considered “defamatory” in relation to Mr. Topić. The Office, on the other hand, apparently did not hesitate to facilitate the circulation of numerous very dubious accusations against the DG3 member, leaving the impression that a Board of Appeal member with an impeccable resume was in fact an armed nazi stalking the corridors of the Isar building4.

Mr. Battistelli is clearly determined to have the DG3 member removed from office, but seems to be rather lost as to the procedures to follow. The first attempt was via a Disciplinary Committee set up by the Council, to be followed by a dismissal by the Council in October 2015. In making this proposal Mr. Battistelli overlooked Art. 23 (1) EPC which stipulates that members of the Boards can only be dismissed upon a proposal from the Enlarged Board of Appeal. In other words: the President of the EPO proposed to the Council to act in breach of the EPC. The Council apparently had its doubts about the legality of the course of action proposed by the President and commissioned an independent legal opinion which confirmed their suspicions: a Board member cannot be removed from office unless the Enlarged Board of Appeal (EBoA) has decided to make a proposal to that effect.

A first attempt to get the EBoA to issue a proposal for removal from office had already been initiated earlier in 2015 but had failed because the EBoA apparently could not make sense of the mass of unstructured material that had been thrown at them. It found the request submitted by the Council to be irreceivable due to lack of substantiation. Apparently, the Office management suppressed the publication on the Office website within days despite the decision of the EBoA that it should be published. This obviously is another problem since it amounts to Mr. Battistelli censoring the EBoA, which seems to be a further interference with its independence. Not awaiting the written reasons for the first decision, the Council, apparently at the urging of the President, proceeded to launch a second request for removal from office. This second request suffered from the same flaws and was withdrawn by the Council on 11 February after a delay of several months. The decision in the second request, although flagged for publication by the EBoA, never made it to the outside world but can be found on the Internet5.

The Council then launched a third request which is still pending. In order to accommodate the prolongation of the procedure, Art. 95 SevRegs was changed in December 2015 with retroactive effect (!) so that now not only the Board member concerned, but any Board member can be suspended for 2 years and longer. After 1.5 years suspension, now on half pay, and 5 procedures (investigation, disciplinary procedure and 3 EBoA procedures), one wonders how many times the Council may come back with basically the same case.

Detailing the complete catalogue of procedural errors in this case would go far beyond the scope of [this] article. Suffice it to say that the whole procedure provides a textbook example for the lack of competence that prevails in the Battistelli administration. And whatever the outcome will be, it is clear that there will only be losers: the Council, who did not assume responsibility as appointing and disciplinary authority, Mr. Battistelli who, in this procedure, has breached almost every regulation in the book; DG3 that has seen its independence seriously undermined, and the DG3 member concerned who has been living an uncertain and very expensive nightmare for 18 months, with no end in sight.

______ 1Communiqué No. 64 (€« Anonymous defamation : EPO staff member apparently involved €») of 03.12.2014, referring back to a Communiqué of 26.02.2013 (€« Defamation Campaign against VP4 €») 2 http://ipkitten.blogspot.de/2014/12/breaking-news-enlarged-board-appeals.html 3 http://techrights.org/2016/01/19/croatian-defamation-lawsuit-an-update/ (access to Techrights is censored in the EPO) 4 Similar accusations were repeated by the President in a letter to Mr. Pierre-Yves Le Borgn' 5 A short overview of the case and links to both decisions can be found on wikipedia: https://en.wikipedia.org/wiki/Art_23_1/15_and_Art_23_2/15



I have personally been following this saga since the beginning and it is appalling that Battistelli still calls himself "President". He should have been impeached not with compensation but with legal cases against him. It's Battistelli who should be on trial, and maybe some day we shall see that too.

Make no mistake about it. It's not as though EPO staff isn't aware of what's going on. It's mostly the media, which has been greased up by Battistelli, that remains apathetic or unwilling to cover the above scandal (or cover it poorly/improperly if it does at all). Sometimes the media just helps Battistelli defame his victim -- a subject on which we might say more one day (we have some insider knowledge of how it came about).

Regarding EPO under Battistelli, one person asked yesterday: "Who is going to be stupid enough to apply for a job at these conditions?" Here is the message in full: "If I understand correctly, the President is introducing new laws meaning that if he fires me for failing to meet 15% yearly increases of examination targets, or because my husband is a patent attorney, he can prohibit me from working for 2 years, cut my pension and apparently also cut my health insurance.

"This sounds crazy when the office is announcing internally that they will recruit hundreds of examiners in the next 3 years to get rid of the backlog until 2020 (4 years). And at that point they will need hundreds of examiners less, of course. Who is going to be stupid enough to apply for a job at these conditions?

"In addition, this is not at all what the council asked. Maybe the President has a plan to destroy the EPO and replace it with a new patent system. Or maybe he is indeed crazy, I don't know. He is not so young. In any case, what can the council really do? Can they get rid of a President in advance? Can they force him to do anything? "

This is not compatible with European law. Battistelli "might kill the EPO in the process," one person wrote yesterday. To quote the entire comment: "I don't think he has a plan to replace the whole system with something else.

"He is just applying what he has learned and what has been applied to all public agencies and corporations for the last 3 decades, cost cutting at the bottom combined with bonuses for the top floors.

"He might kill the EPO in the process, but that is not very likely without political will to do so.

"He will probably do a lot of irreversible damage that will affect the whole IP profession in Europe, examiners and attorneys alike and also some applicants. After all, if filling a form is all that I need to get a patent, I certainly will consider doing that myself."

Well, patent lawyers too increasingly realise that Battistelli is against their interests.

We couldn't help but notice someone still responding to provocative comments if not trolling (which we prefer to altogether ignore and skip). The term “team Battistelli” seems to have been adopted there (it was coined by Techrights). Remember that Battistelli leaving would not be enough as his circle of entryism (i.e. Team Battistelli) now poisons the EPO's management as a whole. Battistelli has surrounded himself with people as abusive as himself, or at least loyal enough to cover up his abuses.

Recent Techrights' Posts

Microsoft: Our "Goodwill" Gained Over 51 Billion Dollars in the Past Nine Months Alone, Now "Worth" as Much as All Our Physical Assets (Property and Equipment)
The makeup of a Ponzi scheme where the balance sheet has immaterial nonsense
FSFE (Ja, Das Gulag Deutschland) Has Lost Its Tongue
Articles/month
Ian Jackson & Debian reject mediation
Reprinted with permission from disguised.work
How to get selected for Outreachy internships
Reprinted with permission from disguised.work
Red Hat Corporate Communications is "Red" Now
Also notice they offer just two options: MICROSOFT or... MICROSOFT!
 
Links 27/04/2024: Kaiser Gave Patients' Data to Microsoft, "Microsoft Lost ‘Dream Job’ Status"
Links for the day
Gemini Links 27/04/2024: Sunrise Photos and Slow Productivity
Links for the day
Almost 2,700 New Posts Since Upgrading to Static Site 7 Months Ago, Still Getting More Productive Over Time
We've come a long way since last autumn
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, April 26, 2024
IRC logs for Friday, April 26, 2024
Overpaid lawyer & Debian miss WIPO deadline
Reprinted with permission from disguised.work
Brian Gupta & Debian: WIPO claim botched, suspended
Reprinted with permission from disguised.work
Microsoft's XBox is Dying (For Second Year in a Row Over 30% Drop in Hardware Sales)
they boast about fake numbers or very deliberately misleading numbers that represent two companies, not one
[Meme] Granting a Million Monopolies in Europe (to Non-European Companies) at Europe's Expense
Financialization of the EPO
Salary Adjustment Procedure at the EPO Challenged
the EPO must properly compensate staff in order to attract and retain suitably skilled examiners
Links 26/04/2024: Surveillance Abundant, Restoring Net Neutrality Rules (US)
Links for the day
Gemini Links 26/04/2024: uConsole and EXWM and stdu 1.0.0
Links for the day
Links 26/04/2024: XBox Sales Have Collapsed, Facebook's Shares Collapse Too
Links for the day
Albanian women, Brazilian women & Debian Outreachy racism under Chris Lamb
Reprinted with permission from disguised.work
Microsoft-Funded 'News' Site: XBox Hardware Revenue Declined by 31%
Ignore the ludicrous media spin
Mark Shuttleworth, Elio Qoshi & Debian/Ubuntu underage girls
Reprinted with permission from disguised.work
Karen Sandler, Outreachy & Debian Money in Albania
Reprinted with permission from disguised.work
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, April 25, 2024
IRC logs for Thursday, April 25, 2024
Links 26/04/2024: Facebook Collapses, Kangaroo Courts for Patents, BlizzCon Canceled Under Microsoft
Links for the day
Gemini Links 26/04/2024: Music, Philosophy, and Socialising
Links for the day
Microsoft Claims "Goodwill" Is an Asset Valued at $119,163,000,000, Cash Decreased From $34,704,000,000 to $19,634,000,000 and Total Liabilities Grew to $231,123,000,000
Earnings Release FY24 Q3
More Microsoft Cuts: Events Canceled, Real Sales Down Sharply
So they will call (or rebrand) everything "AI" or "Azure" or "cloud" while adding revenues from Blizzard to pretend something is growing
CISA Has a Microsoft Conflict of Interest Problem (CISA Cannot Achieve Its Goals, It Protects the Worst Culprit)
people from Microsoft "speaking for" "Open Source" and for "security"
Links 25/04/2024: South Korean Military to Ban iPhone, Armenian Remembrance Day
Links for the day
Gemini Links 25/04/2024: SFTP, VoIP, Streaming, Full-Content Web Feeds, and Gemini Thoughts
Links for the day
Audiocasts/Shows: FLOSS Weekly and mintCast
the latest pair of episodes
[Meme] Arvind Krishna's Business Machines
He is harming Red Hat in a number of ways (he doesn't understand it) and Fedora users are running out of patience (many volunteers quit years ago)
[Video] Debian's Newfound Love of Censorship Has Become a Threat to the Entire Internet
SPI/Debian might end up with rotten tomatoes in the face
Joerg (Ganneff) Jaspert, Dalbergschule Fulda & Debian Death threats
Reprinted with permission from disguised.work
Amber Heard, Junior Female Developers & Debian Embezzlement
Reprinted with permission from disguised.work
[Video] Time to Acknowledge Debian Has a Real Problem and This Problem Needs to be Solved
it would make sense to try to resolve conflicts and issues, not exacerbate these
Daniel Pocock elected on ANZAC Day and anniversary of Easter Rising (FSFE Fellowship)
Reprinted with permission from Daniel Pocock
[Video] IBM's Poor Results Reinforce the Idea of Mass Layoffs on the Way (Just Like at Microsoft)
it seems likely Red Hat layoffs are in the making
Ulrike Uhlig & Debian, the $200,000 woman who quit
Reprinted with permission from disguised.work
IRC Proceedings: Wednesday, April 24, 2024
IRC logs for Wednesday, April 24, 2024
Over at Tux Machines...
GNU/Linux news for the past day