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11.19.15

AllThingsFRAND: The Latest Incarnation (Anti-Linux/Android, Pro-Patents) of Microsoft-Leaning AstroTurf Group Association for Competitive Technology

Posted in Deception, GNU/Linux, Microsoft, Patents at 5:46 am by Dr. Roy Schestowitz

Paid by Microsoft, still serving Microsoft’s agenda under misleading organisational names, hoping nobody will notice

Dark lobby

Summary: The Microsoft-connected ACT has just morphed into another entity, in an apparent effort to derail Android (as well as other Linux-powered mobile operating systems boasting Free/libre code) with patent tax in ‘thicket’ form

SO, Microsoft’s most infamous lobbyists are still around and they use patents as a weapon, not just lock-in such as OOXML. There is now a new mask for this particular group of lobbyists, and a new Web site too. Watch who follows and promotes this site (and Twitter account), it’s just people from ACT. This is yet another campaign Web site (one of many) belonging to this longtime Microsoft AstroTurfing group.

“The name of their site/campaign is probably designed to imitate or borrow the reputation of AllThingsD (Wall Street Journal) or All Things Open (ATO), a conference about FOSS.”See our Wiki for some background on Association for Competitive Technology, formerly known as ATL. It had previous names, but evidently it saw the need to keep renaming/rebranding because its agenda and clients become public knowledge, compromising its ability to operate effectively as a lobbying group.

In recent years these lobbyists were trying to masquerade as an alliance for ‘apps’ developers, disguising the anti-Linux and anti-FOSS agenda as ‘apps’. “Today marks the launch of http://AllThingsFRAND.com,” they announced in Twitter. “Follow our site for the latest news & analysis on patents, standards, and FRAND licensing” (the inherent foes of FOSS, Android, and Linux).

Anyone who follows this site will basically be following lobbyists. They are selling something. They sell agenda, not information.

“[W]hen you see all the complains at the EU level against Google, some company is pulling the strings from behind”
      –Benjamin Henrion
The name of their site/campaign is probably designed to imitate or borrow the reputation of AllThingsD (Wall Street Journal) or All Things Open (ATO), a conference about FOSS.

André Rebentisch (FFII) noticed this and said that “ACT [had] launched a #FRAND web site” (FRAND in this context are patents — mostly software patents — that act as a tax that’s virtually impossible to avoid).

“ACT launched a FRAND web site…”
      –André Rebentisch
Someone should perhaps tell the not-so-open-anymore Red Hat that Microsoft is still attacking FOSS (via front groups), with patents inside so-called ‘industry standards’ (thickets/cartels Microsoft is in). Well, so much for ‘standstill’… they are still on the offensive, albeit discreetly (through satellites).

Benjamin Henrion (FFII) told André that “ACT is still ACT. [Is] Zuck still around?” (he was one of their leading lobbyists even back in the ATL days)

Henrion added that “when you see all the complains at the EU level against Google, some company is pulling the strings from behind” (indeed, and we have covered this many times before).

“Here too we have patent lawyers trying to pressure politicians to support misguided policies that enrich lawyers and their big clients (multinational monopolies/oligopolies) at the expense of everybody else.”Henrion has noticed yet another curious thing about lobbyists. “Patent lawyers are forming working groups,” he wrote, citing Patent Watchtroll, a longtime prominent booster of software patents, “in order to draft law for software patents in the US after the Alice storm” (Alicestorm is a term used to refer to the avalanche of software patents after the Alice case).

Patent lawyers are basically the equivalent of weapons companies with their pro-war lobbying groups, set aside their soft bribes to people in Congress (to ensure politicians become hawkish or that only hawks are electable). This is why US Congress supports militaristic policies which in turn pass public money to weapons companies. Here too we have patent lawyers trying to pressure politicians to support misguided policies that enrich lawyers and their big clients (multinational monopolies/oligopolies) at the expense of everybody else.

Ignore the Noise in Corporate Media; Visual Studio is Still Proprietary (for Windows) and Will Remain Proprietary

Posted in Microsoft at 5:00 am by Dr. Roy Schestowitz

Microsoft is openwashing its lock-in (like greenwashing or whitewashing)

Openwashing

Summary: Ill-informed journalists are helping Microsoft disseminate false messages (or half-truths) about Visual Studio

MICROSOFT finally addressed a criticism we made here before, but it wants the world to misinterpret that and wrongly extrapolate. The following criticisms are still applicable:

Remember that Visual Studio is not “open source” and is not “cross-platform”. Microsoft probably hopes to mislead or confuse the public by opening up and then merely compiling for other platforms just a portion, whereupon it can use misleading headlines to give people the impression that Visual Studio is on equal footing with Eclipse, for instance. It’s the “just enough” openwashing strategy.

It might actually work!

See this week’s news headlines.

Cynthia Harvey [1] deemed .NET “open source” even though it’s still proprietary and patented (we have more promises than deeds), Apple-oriented sites covered it from a Mac-centric point of view [2], some Linux sites [3-5] focused on just one small component of a large proprietary bundle (with no plans of becoming “open source”), and Microsoft apologists [6] or dedicated boosters [7-9] did their best to openwash Microsoft because this tiny portion of a proprietary software suite, Visual Studio (with a proprietary compiler that can potentially sneak in back doors into a lot of programs), had its source code liberated.

This might help get some non-Windows developers ‘addicted’ to Microsoft’s tool and if they later want the full (complete) bundle they’ll need to buy a Windows licence, buy a Visual Studio licence, and then rely on proprietary software from an NSA partner.

Is the world really better off with yet another code editor? One that is Microsoft-leaning?

Related/contextual items from the news:

  1. 11 New Open Source Development Tools
  2. Microsoft’s Android emulator coming soon to Mac as it open-sources Visual Studio Code
  3. Microsoft Open-Sources Visual Studio Code for GNU/Linux, OS X, and Windows
  4. Microsoft’s Visual Studio Code open-sourced
  5. Microsoft Open-Sources Visual Studio Code
  6. Microsoft’s open source .Net now ready for real apps
  7. Microsoft courts Linux, iOS and Android developers with new wave of technologies
  8. Google engineers praise Microsoft open-source collaboration: ‘We share the same soul’
  9. Visual Studio now supports debugging Linux apps; Code editor now open source

    A version of the clang/C2 compiler is already used for Project Islandwood. Extending it to all Visual Studio C++ development is an exciting prospect for C++ developers; although Microsoft’s own compiler has made great strides in recent years, clang offers superior standards support in a number of areas. Being able to take advantage of that in Visual Studio will be very welcome indeed.

Another George Bush Moment: Benoît Battistelli Says EPO Believes in “Fundamental Principles of Freedom, Equality and Justice”

Posted in Europe, Patents at 4:17 am by Dr. Roy Schestowitz

“We have no desire to dominate, no ambitions of empire. Our aim is a democratic peace – a peace founded upon the dignity and rights of every man and woman.”George W. Bush

EPO and George Bush

Summary: Benoît Battistelli uses a disaster to make ludicrous claims and attempt to unify an office that’s truly divided

THE EPO‘s official Twitter account capitalised on Friday’s events, but it did not publicly mention its own (crushing unions and potentially jeopardising people’s lives). The EPO is in a state of meltdown and we were told that even Directors went out to demonstrate against the management yesterday.

“Well, the EPO’s President says he believes in “freedom” but operates his own Stasi-like unit. It illegally spies on staff, journalists, and so on.”Benoît Battistelli’s own response was even more hypocritical than the Twitter account’s. Battistelli would have us believe — to paraphrase Bush — that he has “no desire to dominate, no ambitions of empire.” To quote Battistelli himself: “As an international organisation the European Patent Office believes in an open and inclusive society based on fundamental principles of freedom, equality and justice.”

This is a classic exploitation of a disaster, not for capital gain (so-called disaster capitalism) but for nationalist of pseudo-nationalist (e.g. office) gain.

Well, the EPO’s President says he believes in “freedom” but operates his own Stasi-like unit. It illegally spies on staff, journalists, and so on. The EPO’s President says he believes in “equality” but some businesses (large ones) are more equal than others, and they get preferential treatment. The EPO’s President says he believes in “justice” but he ignores/disregards court orders against his office (for serious abuses against his staff).

Who was Battistelli kidding when he typed down these words?

Links 19/11/2015: Linux Kernel 3.2.73 LTS, DockerCon EU

Posted in News Roundup at 2:45 am by Dr. Roy Schestowitz

GNOME bluefish

Contents

GNU/Linux

Free Software/Open Source

  • 14 amazing open source gifts for the holidays

    Here it is the annual Opensource.com holiday gift guide. Our collection of gifts is sure to get kids, adults, and hobbyists geared up and ready for hours of fun coding and creating. We’ve got 3D printers, Arduinos, Raspberry Pis, gadgets, robotics, and more!

  • Plotly to open source its dataviz code

    Data visualization platform Plotly is open-sourcing its powerful JavaScript library, which supports three dozen different types of graphics including maps, box plots and density plots as well as more common offerings like as bar and line charts. The code is scheduled to be posted on GitHub at https://github.com/plotly/plotly.js today.

  • Hiring Open Source Maintainers is Key to Stable Software Supply Chain

    Samsung is on a multi-year journey to become both a better consumer of open source, and a better contributor and leader in the projects that end up in our products. The reasons for doing so are quite clear to us: While it’s easy to use code that’s made freely available, it’s risky and potentially quite expensive to rely upon it long-term, unless you are proactively working within the community.

    The reason it’s potentially risky is actually the flip side of two of the biggest benefits of open source: development moves extremely fast, and a vibrant developer community leads to more diverse contributions. The result of this combination is that the APIs and the features you depend upon today could be entirely different tomorrow, depending upon the will of the contributor community.

  • Open source projects rely on donated time—what motivates participants?

    The study’s authors collected data from approximately a thousand R contributors who responded to a questionnaire distributed via e-mail. The respondents were asked about what drove them to participate in the project, with possible answers including taking pleasure in applying their skills and feeling a sense of responsibility toward the scientific community. They were also asked about extrinsic motivators, such as the potential that their work could help with academic advancement. Additionally, the surveys included questions about the characteristics of the software development work (e.g. repetitive, technical, social) and the demographics of participants.

  • Implementing open source requires tough staffing, IT calls
  • Import old email archives into Gmail using these open source tools from Google

    If you want to try these open source tools yourself, you can download them at Github (mail-importer and import-mailbox-to-gmail). Unfortunately, mail-importer appears to only support Thunderbird at this time. If you used a different client, you will need to wait for a future update. If you are savvy enough, maybe you can tweak the source to make it work. I have a large Lotus Notes archive saved — I won’t hold my breath on that one being anyone’s priority.

  • Celebrate GIS Day 2015 with 3 open source alternatives to Google Maps API

    If you’re looking to get started with web mapping, here are three libraries which are worth checking out.

  • Stickers

    Basically, stickers are a great way to promote open source projects. Also – fun! For more “Rules of sticker club” go HERE.

  • Events

    • LinuxCon Europe – Day 1

      The conference was opened by the LinuxFoundation’s Executive Jim Zemlin. He thanked the FSF for their 30 years of work. I was a little surprised to hear that, given the differences between OpenSource and Free Software. He continued by mentioning the 5 Billion Dollar report which calculates how much “value” the projects hosted at Linux Foundation have generated over the last five years. He said that a typical product contains 80%, 90%, or even more Free and Open Source Software. He also extended the list of projects by the Real Time Collaborative project which, as far as I understood, effectively means to hire Thomas Gleisxner to work on the Real Time Linux patches.

  • Databases

  • CMS

    • Setting up a Digital Ocean remotely hosted WordPress blog

      After considering our options, we decided to try using a Digital Ocean “Droplet” to host a WordPress blog. Here, I want to tell you how that went, and give a few pointers. This might be a good idea for some of you. And, I’ll explain what the heck Digital Ocean is in case you don’t know.

  • Education

    • RoboTutor team using open source tools to address short supply of teachers, schools

      Where were these Carnegie Mellon University researchers when Sister Thomas Catherine was frightening me and other good little Catholic school 3rd graders back in the day?

      CMU today informed us that a team of its researchers is taking aim at the $10 million grand prize of the $15 million Global Learning XPRIZE competition, the goal of which is to empower children to take control of their own learning via tablet computers, software and the like. The competition was announced about a year ago.

  • BSD

    • LLVM’s Clang Lands More CUDA Improvements

      Just days after writing about GPUCC as Google’s open-source CUDA compiler built atop LLVM and how to compile CUDA code with LLVM, more improvements have landed.

      There’s now support for CUDA compilation by default as one of the most prominent changes today. “Currently clang requires several additional command line options in order to enable new features needed during CUDA compilation. This patch makes these options default.” That change was done by Artem Belevich at Google.

  • FSF/FSFE/GNU/SFLC

    • GCC 5.2 Compiler Benchmarks With ARM Cortex-A57 A Mixed Bag

      In this article are some benchmarks using the Jetson TX1 when running open-source tests using the stock GCC 4.8.4 compiler and then trying out GCC 4.9.3 and GCC 5.2.1. The same compiler flags were used each time when building the benchmarks under each of the different compilers using the automated Phoronix Test Suite. GCC 4.9 and GCC 5.2 were obtained from the Ubuntu Toolchain PPA. All tests are built on the Jetson TX1 without any cross-compilation or other steps.

  • Public Services/Government

  • Openness/Sharing

    • Farmers need better software

      The Open Food Network is a free, open source, scalable e-commerce marketplace and logistics platform that enables communities and producers to connect, trade, and coordinate the movement of food. It was founded by Serenity Hill and Kirsten Larsen, and besides being a network of consumers and producers, Open Food Network is built on free and open source software and released under AGPL license. Plus, anyone can contribute to the project on GitHub.

    • These Biohackers Are Creating Open-Source Insulin

      The 370 million people worldwide with diabetes rely on injections of insulin to regulate the amount of sugar in their blood, since their bodies can’t make the hormone themselves. Since there are no generic versions available in the United States, insulin is very expensive—that cost was likely a large proportion of the $176 billion in medical expenditures incurred by diabetes patients in 2012 alone. Now a team of biohackers with Counter Culture Labs, a community lab in Oakland, California, wants to pave the way towards generic insulin, and they’ve started a crowdfunding page for their project.

    • OpenCar wants to open source in-vehicle infotainment

      The OpenCar suite of offerings come together to work in a way similar to the software developer kits (SDK) offered for various tech and platforms. Everything from Web-based applications like WordPress to gadgets like the Apple Watch have developer kits associated with them so that third-party programmers can build software to work with them. In many ways, what OpenCar is offering is the platform for an SDK for in-car infotainment. Automakers still have to sign on and make their software compatible, but in return they can open their vehicle infotainment to outside developers without compromising its integrity or their control of the experience, branding, and legalities.

    • How will the children of the future learn about science?

      As our understanding of the world expands, it is important to ensure that that knowledge is equally accessible by all members of our society. This is vital to the progress of humanity. This philosophy, which is shared by the open source software movement, is not new; it has been around since the 1600s when the first academic journals were published for public reading. The Jupyter Notebook hints at what the academic journals of tomorrow will look like and paints a promising picture. They will be interactive, visualization-focused, user-friendly, and include code and data as first-class citizens. I believe that these unique characteristics will go a long way toward bridging the gap of understanding between the scientific community and the general public through both narrative and code—a gap that, when bridged, will have a significant impact on our society.

    • Open Data

      • EC brings pan-European open data together on European Data Portal

        On November 16, the European Commission launched the European Data Portal, which will serve as a central gateway to data published by administrations in countries across Europe, from the EU and beyond. Currently over 240,000 datasets from 34 European countries can be accessed through thirteen different categories and a multi-language search function.

      • Greek geodata project extends open data platform

        The Greek government’s open geodata platform (geodata.gov.gr) is making available as open source several tools and extensions to CKAN, a commonly used data management system. The development of reusable tools to help publish and discover open geospatial data is one of the goals of the PublicaMundi project that built Greece’s geodata platform.

    • Open Hardware

  • Programming

    • You might want to hug this book: a review of ‘Git for Teams’

      Git has a bit of a reputation as being difficult to learn and even more difficult to master. Because it’s such a powerful and flexible tool, it is easy for users to make hard-to-correct mistakes. When working with others, it becomes even easier to get out of sorts. Git for Teams aims to solve that problem by not only teaching the reader how to use Git, but how to use teams.

Leftovers

  • Security

  • Environment/Energy/Wildlife

    • 2015 shatters the temperature record as global warming speeds back up

      With just a month and a half left in 2015, it’s clear this year will be by far the hottest on record, easily beating the previous record set just last year. The temporary slowdown in the warming of global surface temperatures (also misnamed the “pause”) has ended, as each of the past four years has been hotter than the one before.

      El Niño is one reason 2015 has been such an incredibly hot year. During El Niño events, hot water is transported from the deep ocean layers to the surface. Over the past 15 years, we’ve experienced more La Niñas than El Niños, which helped temporarily slow the warming of global surface temperatures.

    • I’m a nuclear armageddon survivor: Ask me anything

      Press events are usually decadent affairs of food, drink, and well-dressed executives in up-market hotels. Not this one. A small number of journalists including your correspondent were dumped at dusk in a wet field in the Essex countryside, given blue boilersuits and a small knapsack containing bottle-tops and leaflets, and told to await developments. As most press events don’t ask for disclosure of any medical conditions, nor involve signing a waiver against accidents, those developments were unlikely to be pleasant.

    • The Koch intelligence agency

      The political network helmed by Charles and David Koch has quietly built a secretive operation that conducts surveillance and intelligence gathering on its liberal opponents, viewing it as a key strategic tool in its efforts to reshape American public life.

      The operation, which is little-known even within the Koch network, gathers what Koch insiders refer to as “competitive intelligence” that is used to try to thwart liberal groups and activists, and to identify potential threats to the expansive network.

      Read more: http://www.politico.com/story/2015/11/the-koch-brothers-intelligence-agency-215943#ixzz3rrzL8oiR

  • Finance

    • House Democrats call TPP ‘too big’ to pass Congress

      A half dozen House Democrats asserted on Wednesday that opposition is growing for a sweeping Asia-Pacific trade agreement as the White House ramps up efforts to build support for the deal.

      The six Democrats — Reps. Rosa DeLauro (Conn.), Louise Slaughter (N.Y.), Marcy Kaptur (Ohio), Nydia Velázquez (N.Y.), Mark Pocan (Wis.) and Tulsi Gabbard (Hawaii) — said the Trans-Pacific Partnership (TPP) deal is “too big” to pass Congress and must be scrapped.

      The Democrats, who have long opposed the expansive deal, said the more than 5,000-page agreement, which they carted out in front of the Capitol by hand truck for a press conference, is a big giveaway to multi-national corporations and will have devastating effects on the U.S. economy, jobs and wages.

  • Privacy

    • Don’t Blame Encryption for ISIS Attacks

      Let’s start with what we don’t know. No firm details have been released about how the perpetrators of the attacks in Paris last Friday communicated.

      All the same, some media outlets, politicians, and security leaders in Europe and the U.S. are now suggesting that the tragic events show how encryption technology has lately made it easier for terrorists to evade the authorities.

      Central Intelligence Agency director John Brennan complained about that at an event at the Center for Strategic & International Studies on Monday. “There are a lot of technological capabilities that are available right now that make it exceptionally difficult, both technically as well as legally, for intelligence security services to have insight that they need,” he said.

      There is also much chatter about the possibility that the Paris attackers used Sony’s Playstation gaming network to communicate because it offers a very high level of protection against eavesdropping. This is based on a false assertion—now retracted—that a Playstation 4 console was among the items seized in a series of raids this weekend in France and Belgium. (Belgium’s interior minister did say last week that it was “very, very difficult” for intelligence agencies to “decrypt” communications made through Playstations, but he didn’t back up his claim.)

    • EU centre-right group using Paris tragedy to try to kill data protection directive

      Since the Paris attacks politicians, police and intelligence agencies have pushed for more mass surveillance. And now, it seems they are also trying to undermine the new EU framework for data protection.

      The EU data protection directive has been under massive fire from special interests and member states in the council. But the European Parliament has been firm in insisting on a clear and meaningful framework to protect citizens private data.

    • FBI Paid Carnegie Mellon $1M to Crack User IDs, Claims Tor

      The Tor Project last week claimed the FBI paid Carnegie Mellon University $1 million to crack the anonymity of Tor users.

    • U.S. Mass Surveillance Has No Record of Thwarting Large Terror Attacks, Regardless of Snowden Leaks

      Despite the intelligence community’s attempts to blame NSA whistleblower Edward Snowden for the tragic attacks in Paris on Friday, the NSA’s mass surveillance programs do not have a track record — before or after Snowden — of identifying or thwarting actual large-scale terrorist plots.

      CIA Director John Brennan asserted on Monday that “many of these terrorist operations are uncovered and thwarted before they’re able to be carried out,” and lamented the post-Snowden “handwringing” that has made that job more difficult.

      But the reason there haven’t been any large-scale terror attacks by ISIS in the U.S. is not because they were averted by the intelligence community, but because — with the possible exception of one that was foiled by local police — none were actually planned.

    • Study finds no increase in jihadists’ use of encryption since Snowden leaks

      Is Edward Snowden to blame, even indirectly, for the Paris attacks that left 129 dead and hundreds others injured?

      Ask surveillance hawks, and you’ll likely get an emphatic “Yes!” The rising popularity of encrypted communications following Snowden’s 2013 leak of gigabytes of secret NSA documents has made terrorists far more difficult to identify, they say. Without Snowden, the attackers would still be out in the open.

    • Syrian passports found at Paris attacks scene were fakes made in Turkey

      EU commission chief says EU does not need to review migration policy in light of fears that militants posing as refugees launched attacks

    • NYT Quietly Pulls Article Blaming Encryption in Paris Attacks

      Questions about how the terrorists behind Friday’s attacks in Paris managed to evade electronic surveillance have fueled worrisome speculation in Europe and in the U.S. from intelligence experts, lawmakers and the press — including the New York Times, which on Sunday quietly pulled from its website a story alleging the attackers used encrypted technology.

      On Sunday, the Times published a story citing unidentified “European officials” who told the outlet the attackers coordinated their assault on the French capital via unspecified “encryption technology.”

      “The attackers are believed to have communicated using encryption technology, according to European officials who had been briefed on the investigation but were not authorized to speak publicly,” the article, which has since been removed, stated.

    • After Endless Demonization Of Encryption, Police Find Paris Attackers Coordinated Via Unencrypted SMS

      In the wake of the tragic events in Paris last week encryption has continued to be a useful bogeyman for those with a voracious appetite for surveillance expansion. Like clockwork, numerous reports were quickly circulated suggesting that the terrorists used incredibly sophisticated encryption techniques, despite no evidence by investigators that this was the case. These reports varied in the amount of hallucination involved, the New York Times even having to pull one such report offline. Other claims the attackers had used encrypted Playstation 4 communications also wound up being bunk.

      Yet pushed by their sources in the government, the media quickly became a sound wall of noise suggesting that encryption was hampering the government’s ability to stop these kinds of attacks. NBC was particularly breathless this week over the idea that ISIS was now running a 24 hour help desk aimed at helping its less technically proficient members understand encryption (even cults help each other use technology, who knew?). All of the reports had one central, underlying drum beat implication: Edward Snowden and encryption have made us less safe, and if you disagree the blood is on your hands.

  • Civil Rights

    • What Americans thought of Jewish refugees on the eve of World War II

      The results of the poll illustrated above by the useful Twitter account @HistOpinion were published in the pages of Fortune magazine in July 1938. Fewer than 5 percent of Americans surveyed at the time believed that the United States should raise its immigration quotas or encourage political refugees fleeing fascist states in Europe — the vast majority of whom were Jewish — to voyage across the Atlantic. Two-thirds of the respondents agreed with the proposition that “we should try to keep them out.”

    • ​’Offensive and hysterical’: Obama lashes Republicans over Syrian refugees

      President says Congress lawmakers and state governors are doing Islamic State’s work…

  • Intellectual Monopolies

    • Copyrights

      • Elsevier Says Downloading And Content-Mining Licensed Copies Of Research Papers ‘Could Be Considered’ Stealing

        Elsevier has pretty much established itself as the most hated company in the world of academic publishing, a fact demonstrated most recently when all the editors and editorial board resigned from one of its top journals to set up their own, open access rival. A blog post by the statistician Chris H.J. Hartgerink shows that Elsevier is still an innovator when it comes to making life hard for academics. Hartgerink’s work at Tilburg University in the Netherlands concerns detecting potentially problematic research that might involve data fabrication — obviously an important issue for the academic world.

11.18.15

Meltdown at the EPO, Massive Staff Protests This Afternoon

Posted in Europe, Patents at 10:20 am by Dr. Roy Schestowitz

Photos via Florian Müller [1, 2]

EPO protest

EPO protest

Summary: Unrest at the EPO is reaching what seems like unprecedented levels and the EPO’s management, instead of recognising these issues, prepares for additional repressions

THE EPO’s management just doesn’t get it, does it? The harder it cracks down on staff, the more “blowback” it will suffer (not a reference to the events in Hanover but the CIA term).

As we noted earlier today, staff protests were set to take place and based on photographs these were massive, despite the short preparation time (given enough notice, the EPO's management intimidates protesters and manipulates them too).

“Battistelli has successfully destroyed the EPO. Congratulations.”
      –Anonymous
Merpel at IP Kat is disturbed by a torrent of mails and she wrote that she “has been reading, with some alarm, the emails that have been reaching her with increasing frequency over the past couple of days with regard to some recent developments at the European Patent Office (EPO).”

We are particularly interested in anonymous comments posted in response to this short blog post. One such comment shows that the notorious I.U., or the Stasi which may be the cause of some suicides (its tactics were the subject of a recent series [1, 2, 3, 4, 5, 6, 7], is hiring (warning: direct link to epo.org so tracking is possible). This means that either someone has resigned or they’re expanding the 'gestapo' (internal name or joke).

What the EPO needs is new management because the ‘low’ level staff (i.e. the most technically-qualified staff, not a bunch of bulldogs) cannot co-exist with Battistelli and its ilk anymore. These protests are a living testament and this is far from the first such outcry from employees. To quote some noteworthy comments from IP Kat:

Some weeks ago, the EPO Central staff Committee (hereafter CSC) published on its intranet site a document “Questions on the European Patent Office – a discussion paper”
This document presents 23 questions based on cases which all have a background in real life. I suppose that Merpel will get soon (or later) a copy of this document.
Personally I like the question 13:

The entrusted member has placed a report in the internal post to be sent to the applicant. After reading through the report, the superior, known as the Director, is of the opinion that the arguments presented therein are incorrect because the closest prior art is document D1 and not – as stated in the report – document D2. He asks the entrusted member to revise the report accordingly.
a) What is the legal position?
b) When and how does the public find out about this occurrence?

Continuation:
The entrusted member then consults with the other members of the Examining Division. Following this consultation, the Examining Division decides that the report should be sent out unchanged. The Director refuses to approve the report for sending out to the applicant. Instead, he instructs the entrusted member in writing to revise the report in accordance with his stipulation (D1 instead of D2 as closest prior art) and to sign it in the name of the entrusted member. The entrusted member fears a disciplinary penalty and revises the report as requested, but does not sign off on it.
The Director approves the revised report for sending out. The report is provided with the authentications of the Examining Division and of the entrusted member and is sent to the applicant as a report pursuant to Article 94(3) EPC.
c) What is the legal position?
d) When and how does the public/the applicant find out about this occurrence?
e) What options do the members of the Examining Division have for defending themselves against the Director’s actions, if desired?

Variation:
The Examining Division would like to place its decision regarding the originally compiled report and the written instruction of the Director to the entrusted member in the electronic file as an internal file note that is excluded from public inspection of the files. The Director issues an instruction that this must not be done, and so no one plucks up the courage to place the file note in the electronic file.
f) How does the public/the applicant find out about this occurrence?

The CSC document doesn´t indicate if the director is a DG1 director in direct contact with the ten major applicants.

If anyone can send us “Questions on the European Patent Office – a discussion paper”, that would be enormously helpful. These matters probably merit a public — not just private — discussion. With sensible redactions anonymity can be assured.

Here is another comment:

To fair play : this looks like a batant violation of the EPC;
What would happen if the BoA would have to deal with such a case (and some little birdy would tell them ?

A similar comment states:

The fathers of the EPC envisaged that EPO will be run by reasonable peaple who have interest in everything other than profit. To ensure this the fathers of the EPC provided for that the budget of the EPO must be ballanced. How naive of them!

Here is how the EPO’s management tries to ‘soften’ its actions:

Three members of the Staff Committee are suspended and this splendid piece of literature is published:

“Each staff member deserves to benefit from the duty of care of the Office
The EPO is deeply grateful for the hard work, commitment and loyalty of its 7,000 strong workforce who
have helped make us the leading IP office in the world for both quality of patents issued and the level of
service offered.
Unfortunately, the EPO has recently uncovered instances of anti-social and unlawful misconduct
concerning few employees. These matters are being investigated and dealt with according to a set of
publicly available mles, designed to ensure the fair treatment and protection of employees (Code of
Conduct; Circular 342).
In some cases, those under investigation have attempted to disrupt this proper process through the
making of false allegations and personal attacks against EPO colleagues. Such conduct constitutes a
breach of both our Service Regulations and our Public Service Values.
The EPO – like any other responsible employer – will not tolerate any form of harassment by any of its
employees, regardless of their status, against their colleagues and is taking these matters very seriously
Each staff member deserves to benefit from the duty of care of the Office. It is for this reason that
disciplinary procedures are being launched.
The Office is convinced that these incidents will not overshadow our common good: our reputation of
excellence due to the dedication of the staff. Together. we can continue to make the EPO the successful
organisation to which we are proud to belong.”

It’s so outrageous that I am missing words … and NO I am not anymore proud to belong to this organisation which apparently only serves to nurse the egomania of a psychotic and his acolytes.

This short comment says it all really:

Battistelli has successfully destroyed the EPO. Congratulations.

Finally, we agree with the following comment:

What else must happen before the EPO host countries (Germany, Holland) finally take action to stop these people?
Shame on them!

As we stated over an hour ago, failure to take action may result in more (but still preventable) suicides.

Xamarin is Still All About Microsoft, Still Excluding GNU/Linux

Posted in GNU/Linux, Microsoft, Mono, Novell at 9:35 am by Dr. Roy Schestowitz

Miguel de Icaza
via Wikipedia but with the GIMP treatment

Summary: The de facto Microsoft satellite known as Xamarin reveals that it is still little more than a Microsoft mobile division

LAST MONTH we wrote about Xamarin‘s absorption of a FOSS Android tool, which quickly turned proprietary (almost instantaneously while takeover negotiations took place). Xamarin Studio, like a lot of Xamarin’s proprietary software, does nor even run on GNU/Linux. There is hardly any pretence anymore that Miguel de Icaza and his Microsoft-connected ilk even care about FOSS. These traitors show their true colours and disdain for anything FOSS.

“There is hardly any pretence anymore that Miguel de Icaza and his Microsoft-connected ilk even care about FOSS.”According to Microsoft's booster at El Reg (Anderson), the latest release from Xamarin still has no Java, just Microsoft lock-in like .NET, XAML, etc. To quote his piece:

Xamarin releases version 4.0 of its cross-platform mobile developer suite

[...]

The company has grown rapidly, since it solves a problem for Microsoft-platform developers who now need to target mobile, especially following the failure of Windows Phone to achieve significant market share. “We have over 10,000 customers, 350 consulting partners and 2,000 integration partners,” Friedman told the Reg.

When will everyone recognise that the real motivation at Xamarin is serving as some kind of Microsoft satellite or proxy? Nothing good has come of Xamarin since Novell dumped (laid off all the employees of) Mono and a firm/VC connected to Microsoft became its sugar daddy.

The EPO’s Management Has Just Reaffirmed Its Possible Role in Contributing to Staff Suicides

Posted in Europe, Patents at 8:30 am by Dr. Roy Schestowitz

Another shot in the foot

Great Purge
The EPO’s own Great Purge?

Summary: Reports from the EPO’s staff union serve to show that the management continues to bully staff representatives in ways which are “criminal endangerment of the health of staff members is a clear violation of the Office’s duty of care and amounts to crossing a line.”

OUR previous post about the EPO already mentioned crackdowns on staff representatives. The EPO’s management has become so nasty in fact that it exceeds our rather low expectations. Here is what it does to remind us of its likely role in many suicides (reportedly a tenfold growth in the number of suicides) — a role which it strongly denies in the media, probably in order to dodge accountability.

This is what SUEPO had to say (internally):

16 November 2015
su15051hp

Friday 13th in The Hague

Many of you have called or written enquiring about what has happened to the Staff Representation last Friday, and offering support. We are grateful for this.

“Upon return, he was visibly shaken and appeared to have suffered a nervous breakdown. Medical help
was called, and he had to be wheeled out of the office in bad shape. He appears to
have been subjected to severe, concerted and wilful pressure, especially intended
to harm and destabilise.”
What we know from how the events panned out is this:

• Jesus was picked up from his office by President’s emissaries. Upon return, he was visibly shaken and appeared to have suffered a nervous breakdown. Medical help was called, and he had to be wheeled out of the office in bad shape. He appears to have been subjected to severe, concerted and wilful pressure, especially intended to harm and destabilise.

• Laurent got or was scheduled to get a similar treatment. Noticeably distressed, he had to rush for medical help externally.

• The other members of the Staff Committee who witnessed the event were also
deeply perturbed.

Given the regulations in place, our colleagues are not in a position to inform anyone, so we do not know the Office’s reasons or pretexts for targeting them. However the succession of events strongly suggest that it was in relation to their duties.

Staff representatives and union officials should be able to perform their statutory tasks without the danger of reprisal, much less danger to their health. In addition to medical care, steps will be taken to ensure that appropriate legal representatives are informed and instructed to act. Criminal endangerment of the health of staff members is a clear violation of the Office’s duty of care and amounts to crossing a line. All those involved in this dereliction of duty will have to assume the responsibility for their choices.

We will inform you asap on any further developments.

Please stay tuned and alerted, and contact us if you have any input. The SUEPO Committee The Hague

As Florian Müller put it, the last time he read “stories like that they referred to Romania under its communist dictatorship. They also picked up people who returned in a perturbed state, though they also made them disappear quite often.”

The original PDF (published by Müller) is being mirrored here in case someone like SUEPO gets threatened again (for censorship). Remember that even Müller had links to his blog censored before, again using threats. The EPO plays dirty with the “chilling effect”, as it has evidently done for a number of years (effort to censor critics). It’s happening under Battistelli’s reign and possibly his direct command. It helps to know who does what in case of legal action against persons inside the EPO’s management team.

“If the European public and various patent practitioners (or their so-called representatives, European politicians) fail to put an end to it, suicide number 6 is just a matter of time.”We wish to remind readers that this isn’t the first time that aggressive action by the EPO results in physical harm and serious health/mental impact. This is institutional abuse that can be grounds for a swift and firm legal action. EPO employees are encouraged to collect and retain evidence of harms and abuses to them (such as threats and illegal witch-hunting). They are also encouraged to support their fellow workers, staff representatives, and journalists who cover these abuses. The EPO is no ordinary ‘office’ or ‘organisation’. It increasingly resembles all sorts of unsayable things, where grinning sadistic people not only eliminate but also drag through the mud their perceived ‘opponents’.

If the European public and various patent practitioners (or their so-called representatives, European politicians) fail to put an end to it, suicide number 6 is just a matter of time. That’s almost guaranteed to happen.

EPO: It’s Like a Family Business – Part II

Posted in Europe, Patents at 7:16 am by Dr. Roy Schestowitz

A billboard
Photo credit: WIS-TV; Context

Summary: The convenient vacancy at the EPO’s top tier (astronomical salaries) and the International Labour Organisation’s investigation into it

THERE is a protest at the EPO‘s headquarters right about now and again we’re on vacation while this happens (as incidentally was the case twice earlier this year). This calls for an urgent disclosure of more new information, at risk of compromising the quality of this article (I am writing this from my wife’s laptop). We were not planning to publish this fast, but the EPO’s shameful actions make it imperative. The EPO’s management has gone totally bonkers, verging on potentially criminal actions. They’re starting another war and they try to postpone their own inevitable defeat (there is already very heavy political intervention, approaching the Dutch Prime Minister).

“The EPO’s management has gone totally bonkers, verging on potentially criminal actions.”EPO matters such as this don’t require much explanation, just presentation of the simple facts. Anybody with some common sense can see what’s going on. In part one we wrote about the unprecedented promotion of Elodie Bergot. The remainder of this series will shed more light and provide more relevant information about key players in “Team Battistelli”.

Before we begin part II we wish to provide some new information that may relate to what we’re about to publish. Florian Müller has just made it publicly known that many people were attacked on Friday (not just in France) and we too had been bullied by the EPO. As Müller put it: “The conflict between the leadership and staff representatives of the European Patent Office appears to be totally out of control now. The latest information would be unthinkable anywhere in the civilized world, but the European Patent Organization simply isn’t part of the civilized world around it.”

“The remainder of this series will shed more light and provide more relevant information about key players in “Team Battistelli”.”At a later point we are going to address the letter published by Müller, as it quite probably relates to the horrific atmosphere that results in many suicides. This is what Müller revealed about our own role in this: “According to what I read on Twitter, TechRights blogger Dr. Roy Schestowitz (whose blog cannot be accessed from the EPO network without the use of software work-arounds for this kind of censorship) has also received legal threats from the EPO leadership. No details have become known yet.

“I have not been threatened so far, but I am deeply sorry for those who have been. Rumor has it that Mrs. Hardon and Dr. Schestowitz are not the only ones.

“It appears that Mrs. Hardon has decided to rather be proud and “suspended” than bow to lawlessness, corruption, and evil. I am so sorry for her and the other suspended union leaders, and I truly admire them for their steadfastness.

“Dr. Schestowitz also deserves the greatest respect for his principled stance. Despite all the bullying, he continues to call out the EPO leadership on its actions and decisions. Most recently, TechRights has started to talk about the unbelievable, extraordinary career path of Mrs. Elodie Bergot. It appears that the juiciest part of the story is actually not even on that blog but hidden somewhere between the lines of that post or the forthcoming one (Part II) on the same topic.

“TechRights is a blog I recommend all those concerned about the EPO’s corrupt ways to read regularly. I will write about EPO issues from time to time, but not nearly as often. Also, I wish to highlight the IP Kat blog’s announcement of forthcoming reports on staff suspensions and other EPO issues for this week.”

At the same time IP Kat wrote about something which may relates to leaked documents that we published. According to someone who wrote to IP Kat: “We have a patent application which has been sitting untouched on an examiner’s desk in the EPO for over 10 years [this is ten; t-e-n. Not a typo] prior to the initiation of examination – we just received the first office action. The glaring conflict of interest is astounding.

“This shows that EPO fails miserably both in technical terms and in ethical terms.”“Has the EPO ever considered term-extensions, as in the US, for (significant) delays caused directly by the patent office? [No. Only national patent systems can extend patents, and that's not for delays in the course of the application-to-grant process] I would ask if they ever considered refunding annuities, or at least freezing them – but I am pretty sure I know the answer to that [You do indeed. It's another "no". ].”

This shows that EPO fails miserably both in technical terms and in ethical terms. The EPO tries to justify its abusive behaviour by arrogantly claiming improved “efficiency” or something along those lines; but whose efficiency? Large foreign corporations? The service provided by the EPO these days is a huge embarrassment to Europe. No wonder we see SMEs and their lawyers publicly complaining about the EPO online. The EPO is under fire even from its very own customers, not just its own employees (who are now demonstrating).

Now we begin our second part (of four), starting with Müller’s comments (direct quotes) on the first part [1, 2]. “That promotion [of Bergot],” he explained, “could indeed explain a different rumor I heard about Blatterstelli and won’t talk about in public. Or the other way round: that rumor could explain the promotion.”

“According to information we have received, Bergot’s controversial promotion from A3 to A6 is the subject of an appeal which is currently pending before the Administrative Tribunal of the ILO.”The following points are worth noting about Bergot’s highly irregular promotion. In Judgment No. 2562 of ILO (which has been exceptionally concerned about the EPO's never-ending reports of abuses), the Administrative Tribunal of the International Labour Organisation (ILO-AT) dismissed a Complaint against a disputed appointment of an A6 official. In its Judgment, the ILO-AT pointed out that the Complainant lacked standing in a personal capacity because he was at the relevant time an employee at grade A3. Because of this: “He could not have been considered for appointment or transfer to any A6 position. He therefore does not have standing in his personal capacity.”

In his capacity as a staff representative, the Complainant was however found to have locus standi to bring a complaint on behalf of the Central Staff Committee.

What is significant here is that the ILO-AT, which is the international tribunal responsible for EPO staff disputes, has essentially taken the position that an appointment or transfer from staff grade A3 to A6, such as happened in the case of Ms Bergot, offends against the fundamental principles governing such matters.

According to information we have received, Bergot’s controversial promotion from A3 to A6 is the subject of an appeal which is currently pending before the Administrative Tribunal of the ILO. This growing pressure from the ILO-AT may help explain the crackdown of the EPO on staff representatives (the subject of a separate post — one which is yet to come). These staff representatives are not sources, whistleblowers or anything. They’re just seen as a threat by EPO management because they’re pursuing justice for the workers and they exercise basic rights (such as the right to assemble).

To say more about the ILO-AT jurisprudence, consider the following full text:

105th Session

Judgment No. 2762

The Administrative Tribunal,

Considering the second complaint filed by Mr A. W. against the European Patent Organisation (EPO) on 13 December 2006 and corrected on 11 January 2007, the Organisation’s reply of 30 April, the complainant’s rejoinder of 22 June and the EPO’s surrejoinder of 6 September 2007;

Considering the applications to intervene filed by Messrs H. S. and W. M. on 22 June 2007 and by Messrs F. B., L. G., B. H., L. P. and L. R. M. on 2 July, and the letter of 18 July 2007 by which the Organisation indicated that it had no comments to make on those applications;

Considering Article II, paragraph 5, of the Statute of the Tribunal;

Having examined the written submissions;

Considering that the facts of the case and the pleadings may be summed up as follows:

A. The complainant, a German national, was born in 1969. He joined the European Patent Office, the EPO’s secretariat, on 1 September 1997 as an examiner. On 23 August 2004 the Office published vacancy notice EURO/3959, advertising a two-year contract for an administrative employee post at grade B5/B1. Of the 92 candidates who applied for the post, three were interviewed by the Selection Board, including Mrs P., the wife of the then President of the Office. In its report of 21 October 2004 the Selection Board recommended that Mrs P. be appointed to the post and that one of the other two candidates who had been interviewed be placed on a reserve
list. Mrs P. was the successful candidate, and she took up her duties in November 2004.

By a letter to the President dated 10 February 2005 the complainant requested, in his capacity as chairman of the local Staff Committee in The Hague, a review of the decision to appoint Mrs P. He also signed, together with other staff representatives, a similar request made on behalf of the Central Staff Committee in a letter dated 15 February. Both letters stipulated that if the requests for review were refused, the letters were to be considered as internal appeals.

The complainant was informed by a letter of 17 March 2005 that the President considered that the relevant provisions of the Service Regulations for Permanent Employees of the European Patent Office had been applied correctly and that consequently the matter had been referred to the Internal Appeals Committee for an opinion. The two appeals were joined.

The parties did not request oral hearings. However, the three members of the Selection Board for the vacancy were heard in camera by the Committee during its examination of other internal appeals contesting Mrs P.’s recruitment, and the Committee took into account relevant evidence gathered during those hearings when examining the appeals submitted by the complainant and the other staff representatives. In its opinion of 10 August 2006 the Committee recommended by a majority that the appeal be dismissed as unfounded. The minority, however, drew attention to a number of “troubling anomalies/deficiencies/coincidences” and concluded that “the essential aim [of the selection procedure] was undoubtedly to secure a job for Mrs P. for the duration of her husband’s term as President in accordance with his expressed wish”. On 4 October 2006 the Vice-President in charge of Directorate-General 1 (DG1), acting on delegated authority, endorsed the recommendation of the majority of the Committee. That is the impugned decision.

B. The complainant questions the validity of the selection procedure for vacancy EURO/3959 on a number of grounds. He posits that that procedure was influenced by high-level authority within the Organisation, which would constitute an abuse of power. Even though the members of the Selection Board denied having been placed under explicit pressure to recommend Mrs P., this does not preclude the possibility that they were influenced by “indirect, subliminal pressure”. As evidence of this he contends that it is obvious that the Board members would try not to “displease the Authority” who makes decisions about their careers. He points out that the Selection Board considered the candidates’ international and diplomatic experience and external contacts, even though these criteria were not listed in the vacancy notice. One explanation for this, he suggests, is that they were impressed by Mrs P.’s background, adopted the criteria of their own accord and consequently considered irrelevant facts. Alternatively, the EPO misused its authority, applied indirect pressure and influenced the Board members by requesting that they adopt those criteria. If such pressure was applied, in the complainant’s view, this is direct evidence that the post was unlawfully tailored to fit Mrs P.’s qualifications. He also submits that during her interview Mrs P. expressed an expectation that her contract would be extended, and he questions whether a candidate would make such a statement unless that candidate was “virtually certain” to be recruited.

He alleges that prior to Mrs P.’s appointment the then President of the Office had declared his intention to recruit his wife, which clearly demonstrates that the selection procedure was to be pro forma. It is thus reasonable to assume that the result of the recruitment was predetermined. Regardless of whether the President did in fact influence the decision of the Selection Board, he put himself in a position arousing a reasonable suspicion that he had done so. Consequently, there was an actual, and not merely potential, conflict of interest. In the circumstances it was difficult, if not impossible, for the Board to act independently. Pursuant to the Service Regulations one member of the Board was appointed by the Staff Committee, and the President’s stated objective to recruit his wife “injured” the Staff Committee’s right to express an independent opinion through its appointee and to be equitably represented on the Board. By arranging a selection procedure which appeared proper, the President made the Staff Committee’s appointee an accomplice to nepotism, which brought injury to the Staff Committee as a whole.

The complainant requests the disclosure of the identities of the Selection Board members as well as an oral hearing in which the Board members, plus Mrs P. and Mr P., the former President of the EPO, are called as witnesses. He asks the Tribunal to quash the impugned decision, to annul Mrs P.’s appointment ab initio and to order “restitution of undue salaries and accrued benefits”. He also seeks a public apology, moral damages in the sum of one euro per staff member represented by him at the relevant time and costs.

C. In its reply the EPO argues that the complainant’s claim for a public apology is irreceivable because the Tribunal is not competent to grant such relief. Relying on the Tribunal’s case law, it also opposes his applications for disclosure and for an oral hearing. It further points out that the case law establishes that a decision by an international organisation to make an appointment is a discretionary one and as such is subject to only limited review by the Tribunal.

On the merits the Organisation submits that the Service Regulations establish conditions for the recruitment and appointment of staff which do not preclude the recruitment of staff members’ spouses. Consequently, the Selection Board was not in violation of the Service Regulations when it considered Mrs P.’s application and then recommended her as a suitable candidate. In addition, the President was not involved in his wife’s appointment as he had delegated authority for the recruitment of all non-examiner staff to the Vice-President in charge of Directorate-General 4 (DG4), who made the decision to recruit Mrs P. By delegating his authority, the President avoided a conflict of interest.

The EPO argues that the criteria used by the Selection Board were suitable given the duties and qualifications specified in vacancy notice EURO/3959. The Board exercised appropriate discretion in the selection of candidates, and no relevant facts were ignored in its unanimous recommendation, or indeed in the Vice-President’s decision.

Disagreeing with the minority opinion of the Internal Appeals Committee, the Organisation considers that the Selection Board acted in conformity with the Service Regulations by recommendingthat Mrs P. be appointed to the post and that another suitable candidate be placed on a reserve list.

With respect to the complainant’s allegations regarding abuse of power, the EPO denies that the post was tailored for Mrs P. and explains that the duties set out in the vacancy notice corresponded to the staffing needs of the unit to which the post was attached. As for the statement allegedly made by the President regarding his intention to recruit his wife, it observes that, even if he made such a statement, this is not proof that the Administration knew before the publication of vacancy notice that Mrs P. would apply for the post, nor is it possible to infer that the outcome of the selection procedure was predetermined.

The Organisation denies that the Selection Board was subjected to “subliminal pressure” and that the Staff Committee’s appointee on the Board was unable to act with a sufficient degree of independence. Furthermore, the Service Regulations provide that the fact of performing duties as an appointee of the Staff Committee “shall in no way be prejudicial to the person concerned”, and this statutory safeguard is reinforced by the Tribunal’s case law on the protection of freedom of association. The Selection Board issued a unanimous recommendation and the President cannot be held responsible for the opinion expressed by the Staff Committee’s appointee.

Contrary to the complainant’s view, the image of the Staff Committee was not injured, because such injury presupposes that there is public knowledge of the Selection Board’s unanimous recommendation for Mrs P.’s recruitment, and that will not be the case until the publication of the Tribunal’s decision in this matter.

D. In his rejoinder the complainant reiterates his arguments and presses his request for the examination of witnesses. He argues that it is unclear how the President’s delegation of authority to make appointments guaranteed independent appraisal of the facts with respect to Mrs P.’s recruitment. He further submits that the Staff Committee’s appointee on the Selection Board was derelict in his duty by not objecting to that recruitment, and that the fact that the recommendation was unanimous does not mean that the selection procedure was without flaws. It is clear that the Board was manifestly mistaken, because in contrast to the other candidate it considered suitable, Mrs P. did not have any international professional experience, nor any experience in the field of patents. By placing the other candidate on a reserve list the Board breached Annex II of the Service Regulations, which requires it to draw up the list of suitable candidates and then forward it to the appointing authority. The complainant concludes that the recruitment of Mrs P. was the result of unacceptable bias and a lack of objectivity.

E. In its surrejoinder the EPO maintains its position. It stresses that there is no question of new criteria not mentioned in the vacancy notice having been used during the selection procedure. It also considers that the complainant fails to respect the independence and freedom of speech enjoyed by the Staff Committee’s appointee. What the complainant criticises as a “dereliction of duty” was actually the appointee expressing an opinion that is different from that of the complainant.

CONSIDERATIONS

1. The complainant, an examiner at the EPO, is a deputy chairman of the Central Staff Committee and chairman of the local Staff Committee in The Hague.

2. On 23 August 2004 the EPO published a vacancy notice for a two-year contract administrative employee post at the B5/B1 grade in Directorate 5.1.1. The notice listed the following as the main duties of the post:

• maintenance of regular contacts and correspondence with national patent offices of the Member States;

• maintenance of regular contacts and correspondence with organisations such as the EC and other interested IP groups;

• provide general administrative support to the organisational unit responsible for relations with the Member States:

- preparation and organisation of missions; and

- establishing a database for contacts and file maintenance.

3. The minimum qualifications for the post included secondary education or in exceptional cases equivalent professional experience and “[w]orking knowledge of the EPO official languages”.

4. According to the complainant, in the course of conversations with the Chairman of the Central Staff Committee on 1 and 8 September 2004, the President of the Office stated that he made no secret of his intention to recruit his spouse to the EPO.

5. On 29 September 2004 the Munich Staff Committee appointed a replacement for its earlier nominee on the Selection Board established to deal with the above-noted vacancy. At the same time it lodged an objection to the content of the vacancy notice on the basis that the position described was in the nature of a permanent post. The Principal Director of Personnel responded that it was anticipated that in 2005/2006 there would be a need for a temporary strengthening of the administrative support for a number of cooperation projects with national offices.

6. In early October 2004 staff representatives in Vienna protested against the freeing of a vacancy in Munich for a position that, in their view, clearly fell within a Principal Directorate in Vienna.

7. In its report of 21 October 2004 the Selection Board noted that 92 applications had been received for the post. The Board invited three of the 92 applicants to be interviewed. One of the candidates invited for an interview was Mrs P., the President’s spouse. Of the three candidates interviewed, one was assessed as “not recommended”. Of the two remaining candidates, the Board found one to be “suitable”, but as she was the second-best candidate it recommended that she be placed on a reserve list. The Board recommended Mrs P. for the post. In its report, it stated:

“[...] She has excellent professional experience, and is clearly more than able to perform the duties set out in the vacancy notice. She is accustomed to dealing with high-ranking people; she also has broad international experience and a desire to make the project a success. She speaks very good English and adequate German.”

8. Mrs P. was appointed to the post effective 15 November 2004. Her appointment was subsequently extended to 30 June 2007, the date on which the President’s tenure was due to end.

9. In February 2005 the complainant, in his capacity as chairman of the local Staff Committee in The Hague, submitted a request to the President of the Office for review of the decision to appoint Mrs P. The Central Staff Committee submitted a similar request. The President considered that the relevant provisions had been applied correctly and referred the matter to the Internal Appeals Committee. Given that the subject matter of the two requests was identical, the appeals were joined.

10. In March 2006, in the context of another appeal brought against Mrs P.’s recruitment, the Internal Appeals Committee interviewed the members of the Selection Board in camera. The evidence obtained during these interviews was also used for the purposes of the complainant’s appeal.

11. During the interviews, the three members of the Selection Board, M1 (appointed by Personnel), M2 (appointed by the Staff Committee), and M3 (appointed by the department to which the post was attached) denied being under any pressure to select a particular candidate and supported the ultimate recommendation.

12. M1 stated that although the number of candidates selected for interviews was low, it was within the normal range for a B-grade post.

13. M2 stated that he had the impression that the post was tailored to Mrs P. and noted that at the interview Mrs P. had responded to one of his questions by stating that she expected her two-year contract to be extended for an additional year. He also stated that the Principal Director of Personnel had called him and said that “he hoped for a good outcome to the selection procedure”. M2 claimed that he would not allow himself to be pressured and stated that he answered accordingly.

14. M3 explained why the post had been created and stated that a typing error was the only explanation he could offer for the job description having been dated 26 July 2004 and pre-dating the vacancy announcement. He maintained, however, that it had been signed much later.

15. The Internal Appeals Committee, by a three to two majority, recommended that the appeal be dismissed as unfounded. On 4 October 2006 the Vice-President of DG1, to whom the President had delegated the authority to make the decision, endorsed the opinion of the majority and dismissed the appeal as unfounded. That is the
decision the complainant impugns before the Tribunal.

16. The complainant alleges that the impugned decision is tainted with procedural and substantive errors, abuse of authority, conflict of interest, bias and bad faith.

17. Before turning to the submissions, it is useful to reiterate that given the nature of an organisation’s decision to make an appointment, the Tribunal will only intervene if the decision was taken without authority, or in breach of a rule of form or of procedure, or if it rested on an error of fact or of law, or if some essential fact was overlooked, or if there was abuse of authority, or if clearly mistaken conclusions were drawn from the evidence. Further, the Tribunal will not substitute its assessment for that of the organisation.

18. As to the procedural errors, the complainant submits that the Selection Board’s application of criteria which were not listed in the vacancy notice and which were not necessary given the grade of the post, violated Article 5 of Annex II to the Service Regulations. Further, the Board violated Article 5, paragraph 4, by placing only one name on the “list” of suitable candidates. Lastly, the complainant submits that the EPO has failed to prove a proper delegation of the decision-making authority.

19. The Organisation contends that a good mastery of the EPO’s official languages, experience working as an assistant or secretary and an international background are criteria that fit within the vacancy notice, particularly since one of the main duties identified in the notice was fostering contacts with the national patent offices of Member States. Regarding the alleged violation of the above-mentioned Article 5, paragraph 4, the EPO submits that having regard to the Selection Board’s report, it is clear that the Board gave its assessment of all three candidates interviewed, made a reasoned report and found that two of the candidates were suitable. The EPO submits also that the President’s decision-making authority was properly delegated in accordance with a Note to the President dated 9 June 1998.

20. In its report of 21 October 2004 the Selection Board stated that in establishing its shortlist of candidates to be interviewed “special emphasis was placed on work experience in ‘assistant’ capacity – preferably in an international environment – and on excellent language knowledge, particularly of French and English”.

21. It is clear that work experience as an assistant preferably in an international environment is directly related to the main duties described in the vacancy notice. However, by placing emphasis on “excellent language knowledge, particularly of French and English”, the Selection Board modified and added to the language requirement in the vacancy notice, which specified a “working knowledge of the EPO official languages”. The focus on an excellent knowledge of French and English is not explained by the Board, nor can it be said that it is related to the duties of the post. This is not akin to a finding that those candidates with a higher level of proficiency in all three languages required by the vacancy notice were more qualified. That would be the case if the Board had used the criterion of excellent knowledge of the EPO’s three official languages for the purpose of preparing a shortlist of candidates to be interviewed. In effect, however, the Board narrowed the language criterion by raising the standard on only part of the requirement. Despite the content of the vacancy notice, a candidate with a working knowledge of the three official languages as specified in the vacancy notice could not be successful.

22. The Tribunal also finds that the procedure adopted by the Selection Board violates Article 5, paragraph 4, of Annex II to the Service Regulations, which states:

“On completion of its proceedings, the Selection Board shall draw up the list of suitable candidates provided for in Article 7 of the Service Regulations; the list shall whenever possible contain more names than the number of posts
to be filled.

The Selection Board shall forward this list to the appointing authority, together with a reasoned report by the Selection Board including any comments its members may wish to make.”

Article 7, paragraph 2, of the Service Regulations reads:

“For each competition, a selection board, the composition of which is laid down in Annex II, shall be appointed by the appointing authority. This board shall draw up a list of suitable candidates.

The appointing authority shall decide which of these candidates to appoint to the vacant post.”

23. Although the parties focused their debate on the meaning of “whenever possible” in Article 5, paragraph 4, of Annex II, it is clear from Article 7, paragraph 2, of the Service Regulations that all candidates found to be “suitable” must be placed on the list. In the present case, in addition to Mrs P., a second candidate was also found to be “suitable”. However, she was not included on the list for consideration by the appointing authority. By not placing the second candidate on the list, the Selection Board, in effect, determined the outcome of the competition.

24. The validity of a delegation of authority is premised on the delegator having the power or authority to take the action in question. In the present case, it is doubtful whether the powers conferred on the President extended to the appointment of his spouse to a post in the EPO. However, that point has not been raised. Leaving this aside, as to the question of the delegation of authority, although it is not entirely clear that the document upon which the EPO relies in fact supports its assertion that the decision-maker was acting under properly delegated authority, the real issue is whether the fact that the President has delegated his authority to select the successful candidate to another official adequately protects the integrity of the selection process. For the reasons set out below in consideration 27, in the Tribunal’s view it does not.

25. While the above procedural flaws alone would be sufficient to warrant setting aside the impugned decision, given that the main thrust of the complaint is the allegation of abuse of authority, conflict of interest, bias and bad faith, some further comment is required. At this juncture, it should be noted that in the complainant’s submissions there is no separate analysis for each of these allegations. Instead, the complainant uses the terms almost interchangeably. For the purpose of this discussion, it is not necessary to engage in a separate legal analysis for each of the allegations.

26. The Organisation is correct in stating that the Service Regulations do not preclude the recruitment of the spouses of staff members. Nor does there appear to be any regulatory bar to the recruitment of the spouses, friends, or close associates of the highest ranking officials in the Organisation. Whether this type of recruitment ought to be permitted is not for the Tribunal to decide but is a question of policy for each organisation to answer.

27. However, where an organisation permits such recruitment, then it is imperative that special procedures be put in place to ensure the integrity and transparency of the selection process. Where such procedures have not been put in place, the presumptions of regularity and bona fides will not apply. In the absence of the operation of these presumptions, it will take very little to establish improper motive or bad faith.

28. In the present case, the complainant and, in turn, the minority of the Internal Appeals Committee have identified a host of “troubling anomalies/deficiencies/coincidences” surrounding the selection process. While any one of these when viewed in isolation may not support an allegation of abuse of authority, conflict of interest, bias and bad faith, when taken together they demonstrate at a minimum that the decision to recruit Mrs P. was taken in bad faith.

29. In view of the above findings, the complainant’s request for an oral hearing is rejected.

30. In conclusion, the impugned decision must be set aside. The complainant also seeks the following additional relief:

(1) annulment of Mrs P.’s appointment ab initio, with restitution of undue salaries and accrued benefits;

(2) a public apology;

(3) moral damages of one euro per staff member whom the complainant represented at the “relevant time”; and

(4) costs.

31. The request that Mrs P.’s appointment be annulled coupled with the requirement to repay any salaries and benefits she received appears to be grounded on the complainant’s allegation that Mrs P. colluded with her husband to obtain the appointment. This allegation appears to rest on a statement Mrs P. made at her interview to the effect that she expected her contract to be renewed. As it is not entirely clear from the witness’s statement what was actually said or intended, this claim for relief will be dismissed, as will the claim for a public apology because it is beyond the Tribunal’s power to make such order.

32. In his representative capacity, the complainant has not suffered any actual pecuniary damage. He is entitled to moral damages, however, which the Tribunal assesses at an amount equivalent to one euro per staff member of the EPO, as he has requested. The Tribunal also awards the complainant costs in the amount of 1,000 euros.

33. Seven other staff representatives applied under Article 13, paragraph 1, of the Tribunal’s Rules to intervene in the complaint. Their applications are allowed and the benefit of the present judgment including the award of moral damages shall be extended to them.

DECISION

For the above reasons,

1. The impugned decision is set aside.

2. The Organisation shall pay moral damages to the complainant and the interveners as representatives of the Staff Committee in an amount equivalent to one euro per staff member.

3. It shall pay the complainant costs in the amount of 1,000 euros.

4. All other claims are dismissed.

In witness of this judgment, adopted on 16 May 2008, Ms Mary G. Gaudron, Vice-President of the Tribunal, Mr Giuseppe Barbagallo, Judge, and Ms Dolores M. Hansen, Judge, sign below, as do I, Catherine Comtet, Registrar.

Delivered in public in Geneva on 9 July 2008.

Mary G. Gaudron
Giuseppe Barbagallo
Dolores M. Hansen

Catherine Comtet

To better understand why the staff representatives are being so viciously attacked right now, read 33 above. It’s quite revealing that the EPO’s management is more interested in cracking down on messengers than in cracking down on its own abuses/abusers.

“How might those other 92 candidates (likely far better qualified), some of whom got invited for an interview, feel about this if they knew that one special skill they lacked was being connected to the former EPO President?”Among the accusations — defended using factual observations — were tailoring of a job description (for a vacancy) to someone’s relatively limited set of skills. How might those other 92 candidates (likely far better qualified), some of whom got invited for an interview, feel about this if they knew that one special skill they lacked was being connected to the former EPO President? In relation to Bergot, did the candidates know one candidate was the spouse of the President’s buddy? Or to put it more crudely, sleeping with Battistelli’s confidant? Many of these candidates probably still don’t even know and Bergot’s different surname (from her husband’s) wouldn’t help them. It wouldn’t be a giveaway.

In conclusion, it may be worth looking at what the jurisprudence of the ILO-AT says about the recruitment of “the spouses, friends, or close associates of the high ranking officials” in an International Organisation such as the EPO.

ILO-AT Judgment No. 2762 concerned a case in which a former EPO President (Alain Pompidou) had secured an appointment at the EPO for his spouse.

“ILO-AT Judgment No. 2762 concerned a case in which a former EPO President (Alain Pompidou) had secured an appointment at the EPO for his spouse.”In its conclusions the ILO-AT stated the following: “26. The Organisation is correct in stating that the Service Regulations do not preclude the recruitment of the spouses of staff members. Nor does there appear to be any regulatory bar to the recruitment of the spouses, friends, or close associates of the highest ranking officials in the Organisation. Whether this type of recruitment ought to be permitted is not for the Tribunal to decide but is a question of policy for each organisation to answer.

“27. However, where an organisation permits such recruitment, then it is imperative that special procedures be put in place to ensure the integrity and transparency of the selection process. Where such procedures have not been put in place, the presumptions of regularity and bona fides will not apply. In the absence of the operation of these presumptions, it will take very little to establish improper motive or bad faith.

Stay tuned for parts III and IV.

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