03.17.16

Better Late Than Never: Bavarian Parliament Intervenes in EPO Affairs Amidst Abuses

Posted in Europe, Patents at 7:48 pm by Dr. Roy Schestowitz

Summary: A Bavarian Parliament motion with high urgency zooms in on abuses at the European Patent Office in Munich

Earlier this month, as regular readers surely know, Bavarian television covered the EPO abuses and only hours ago even British media caught up with it and covered it. To quote The Register‘s report:

Although the resolution falls short of what some had hoped for, it does mean that unless Battistelli can show significant improvements in his relationship with staff, he will face more serious consequences at the next administrative council meeting in a few months.

The trust gap between management and staff has been growing in recent weeks, with the staff voting to strike in protest at the management’s tactics. No fewer than 2,000 EPO staff protested outside the front of the EPO building in Munich as the council was deliberating.

And in a damning indictment, a staff survey this week – in which 40 per cent of EPO staff responded – gave Battistelli a zero per cent confidence rating.

[...]

In one heart-wrenching TV report, the brother of a former patent examiner explained that the pressure put on him was a major factor in his subsequent suicide. The report also claimed that EPO employees are scared to talk publicly about their mistreatment in case they are fired.

The investigative Bavarian report made waves which got the EPO's management rather nervous and eager to take action. Well, no wonder…

Emergency motion in the Bavarian parliament was filed later in the same month. To quote a reader of ours: “There was also an emergency motion in the Bavarian parliament tabled by the Freie Wähler party. (“Free electors”), who have 19 members out of 180 in the legislature. The party has centrist positions.

“The motion calls for the government of Bavaria to take measures for enforcing proper employment standards in the EPO.”

This means that it’s likely reactionary — a reaction to the Bavarian TV report.

Here is the whole thing as text (English translation would be greatly appreciated and helpful to all):

Dringlichkeitsantrag

der Abgeordneten Hubert Aiwanger, Florian Streibl, Gabi Schmidt, Prof. (Univ. Lima) Dr. Peter Bauer, Dr. Hans Jürgen Fahn, Günther Felbinger, Thorsten Glauber, Eva Gottstein, Joachim Hanisch, Johann Häusler, Dr. Leopold Herz, Nikolaus Kraus, Peter Meyer, Alexander Muthmann, Prof. Dr. Michael Piazolo, Bernhard Pohl, Dr. Karl Vetter, Jutta Widmann, Benno Zierer und Fraktion (FREIE WÄHLER)

Bayerisches Niveau beim Arbeitnehmerschutz in ganz Bayern sichern: Europäisches Patentamt in die Pflicht nehmen!

Der Landtag wolle beschließen:

I. Der Landtag stellt fest,

1.dass in der Personalpolitik des in München ansässigen Europäischen Patentamts (EPA) offensichtlich erhebliche Defizite bestehen, was die arbeitsrechtliche Stellung der Bediensteten anbetrifft,

2. dass die gegenwärtige Situation der Bediensteten des EPA nicht hinnehmbar ist und Arbeitnehmerschutz auf bayerischem Niveau auf dem gesamten Territorium des Freistaats zur Anwendung kommen muss,

II. Die Staatsregierung wird aufgefordert, sich auf Bundes- und Europaebene einzusetzen, dass auf eine Erhöhung der Arbeitnehmerstandards auf unser bewährtes deutsches und bayerisches Niveau innerhalb des EPA hingearbeitet wird und insbesondere die von dessen Präsidenten erlassenen Richtlinien im Hinblick auf die umstrittenen internen Ermittlungsverfahren schnellstmöglich überarbeitet werden.

Begründung:

Annähernd 2.000 Demonstranten versammelten sich schon während der regelmäßigen Demonstrationen vor dem Europäischen Patentamt (EPA), um gegen die schlechten Arbeitsbedingungen zu demonstrieren. Kostensenkungen und die Bewältigung des jährlichen Anmeldewachstums von Patenten i.H.v. durchschnittlich vier Prozent bei gleichbleibendem Personalbestand führen offensichtlich zu nicht länger hinnehmbaren Gängelungen wie etwa Kontrollen im Krankheitsfall der Mitarbeiter. Der ehemalige Bundesverfassungsrichter Siegfried Broß attestiert „ganz erhebliche Defizite“ in der arbeitsrechtlichen Stellung der Bediensteten. Ein Einklang mit deutschen und bayerischen Arbeitsstandards ist nicht erkennbar. Das EPA ist zwar eine außerstaatliche Institution, so dass deutsches Arbeitsrecht nicht zur Anwendung kommt. Bayern darf als Sitzland aber dennoch nicht tatenlos zusehen, wenn es möglicherweise bereits um menschenrechtswidrige Behandlungen auf dem Territorium des Freistaats geht. Insbesondere ist die Durchführung der umstrittenen Ermittlungsverfahren, die vom Präsidenten des EPA in Richtlinien erlassen wurden, nicht hinnehmbar. Demnach zwingt eine interne Ermittlungseinheit des EPA Mitarbeiter zu Aussagen ohne ein Verweigerungsrecht. Die bisherigen Bemühungen des Bundesjustizministerium, und des Verwaltungsrats des EPA, auf Verbesserungen hinzuwirken, sollen durch aktives Vorgehen der Staatsregierung auf Bundes-und Europaebene flankiert werden.

There will be lots of additional material coming out tomorrow. █

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Insider’s Account (Not Face-Saving EPO Statement) Reveals That Even Battistelli’s Allies Turn Against Him, EPO ‘Results’ Not Believed by Some, and Munich Protests Break Records

Posted in Europe, Patents at 7:14 pm by Dr. Roy Schestowitz

The ‘official’ narrative does not tell the full story, as usual…

Summary: Once the thick blanket of PR and hogwash is removed, more optimism for EPO workers is found and more trouble for Battistelli et al becomes apparent

Media Coverage

A LOT is happening at the EPO this week and earlier this night/evening we wrote a quick response to the outcome of the Administrative Council's (AC) meeting. We have not lost track of mainstream media coverage, some of which got listed as follows at SUEPO’s site later in the afternoon. The following list isn’t complete and we hope that SUEPO will produce translations in the coming days (some of the articles below have already been translated for publications at Techrights):

• “Lidstaten Octrooibureau willen rechtvaardige sancties” (NRC, 17 March 2016).
• “2000 gegen einen” (Donaukurier, 16 March 2016).
• “EPA-Konflikt: Schonfrist für Battistelli” (JUVE, 16 March 2016).
• “LABOR DISPUTE – Daggers Drawn at European Patent Office” (Handelsblatt, 16 March 2016).
• “Baas Europees Octrooibureau vertrekt boos bij Van Dam” (NRC, 16 March 2016).
• “Het wordt een pijnlijke bijeenkomst” (NRC, 16 March 2016).
• “Angry EU patent office chief breaks off talks with Dutch minister: NRC” (DutchNews.nl, 16 March 2016).
• “Staatssecretaris voert vruchteloos gesprek met omstreden octrooibaas” (nu.nl, 16 March 2016).
• “L’Epa, c’est moi” (Süddeutsche Zeitung, 15 March 2016).
• “Angst, Mobbing, Entlassungen” (Donaukurier, 15 March 2016).
• “Verwaltungsrat berät über Zwist beim Europäischen Patentamt” (München.tv, 15 March 2016).
• “Querelen beim europäischen Patentamt – Aufstand im Paradies” (Handelsblatt, 15 March 2016).
• “Angst im Europäischen Patentamt: Wer kritisiert, wird entlassen” (blog.compact, 15 March 2016).
• “EPO’s Admin Council meets amid demonstration and strike threats” (Managing Intellectual Property, 14 March 2016).
• “La commission des affaires européennes auditionne le président de l’OEB” (Philip Cordery, 14 March 2016).
• “EPO Union Presses Management To Reverse President’s Disciplinary Actions” (IP-Watch, 14 March 2016).
• “EPO Performance 1 – application pendency times” (IPKAT, 12 March 2016).

It is worth noting that much of the above comes from Dutch and German media, as should probably be expected given the location of the offices. We should add to the above “Battistelli bleibt trotz Protesten im Amt”, which was published earlier today. If anyone can produce a translation or interpretation of new information, that would be appreciated.

“We already know, based on the reaction to a German TV program, that EPO management is very aggressive towards the media.”“Legal notice” has just been added by SUEPO, mirroring what its apparently new site (withdrawn since) contained. The text is exactly the same (see screenshot from February) as it says: “External links are being provided as a convenience and for informational purposes only; they do not constitute an endorsement or an approval by SUEPO of any of the products, services or opinions of the corporation or organization or individual publishing the linked material. SUEPO bears no responsibility for the accuracy, legality or content of the external site or for that of subsequent links. Contact the external site for answers to questions regarding its content.”

For those who don’t understand the purpose of this text, consider legal threats against SUEPO (half a year ago). We already know, based on the reaction to a German TV program [1, 2], that EPO management is very aggressive towards the media. It cannot tolerate opposing views and it’s stuck in a bubble of self righteousness.

EPO Saving Face

As we noted earlier today, the hogwash posted in the EPO’s Web site should be taken with a large barrel of salt because the EPO shamelessly lies to journalists nowadays. Here is the full statement with our comments in-line:

Munich, 17 March 2016

147th meeting of the Administrative Council of the European Patent Organisation (Munich, 16 March 2016)

The Administrative Council held its 147th meeting in Munich on 16 March 2016, with Jesper Kongstad, Director General of the Danish Patent Office, in the chair.

After the Chairman’s activities report, covering in particular the last two meetings of the Board of the Administrative Council, the Council noted the activities report given by the President of the European Patent Office, Benoît Battistelli. The Council was pleased with the excellent results achieved by the Office in terms of production and productivity but expressed concern about the social climate and discussed quality.

Who measured the quality? Did they try independent quality assessment? By some indications, the EPO tortured statistics or even invented the results. As we are going to show later on, some people at the AC were rightly skeptical.

Following an in-depth discussion, the Council approved, in agreement with the President, a resolution on the social situation (see the document below).

The Council re-elected its chairman for a term of three years starting on 1 July 2016. It made two appointments to the Supervisory Board of the Academy and a number of appointments to the Boards of Appeal.

With Kongstad staying for another 3 years it may be hard to discover (or have divulged) Battistelli’s super-secret contract.

The Council noted information provided by the Office on the envisaged structural reform of the EPO Boards of Appeal.

The Council heard reports on the Select Committee 19th meeting (see separate report on this website) as well as on the unitary patent, the latter delivered by the Netherlands delegation representing the country holding the EU presidency in the first half of 2016.

Council Secretariat

The unitary patent is a project that can be hard to implement because of various sources of opposition. But the EPO, as usual, pretends it has no opposition whatsoever, just some “vocal minority” or something along those lines.

Now comes the next (non-introductory) part:

RESOLUTION ADOPTED BY THE ADMINISTRATIVE COUNCIL ON 16 MARCH 2016

The AC,

in its capacity as supervisory organ of the EPOrg -

having repeatedly expressed its deep concerns about the social unrest within the EPOffice;

having repeatedly urged the EPOffice President and the trade unions to reach a consensus on an MOU which would establish a framework for negotiation between social partners;

noting that disciplinary sanctions and proceedings against staff or trade union representatives have, among other reasons, made it more difficult to reach such a consensus;

noting that these disciplinary sanctions and proceedings are widely being questioned in the public opinion;

recalling the importance and the urgency of the structural reform of the BOA;

recognizing the important institutional role of the AC and its dependence on a well-resourced and independent secretariat;

Calls on both parties to the social dialogue to recognize their responsibilities and to work diligently and in good faith to find a way forward, and:

Requests the EPOffice President -

to ensure that disciplinary sanctions and proceedings are not only fair but also seen to be so, and to consider the possibility of involvement of an external reviewer or of arbitration or mediation

pending the outcome of this process and before further decisions in disciplinary cases are taken, to inform the AC in appropriate detail and make proposals that enhance confidence in fair and reasonable proceedings and sanctions;

to submit to the AC a draft revision of the Staff Regulations which incorporates investigation guidelines (including the investigation unit) and disciplinary procedures which have been reviewed and amended;

to achieve, within the framework of the tripartite negotiations, an MOU simultaneously with both trade unions, which would have no pre-conditions or exclude any topics from future discussions;

to submit proposals to the AC at its June 2016 meeting, after discussion in B28, for immediate implementation of the structural reform of the BOA, on the lines of the 5 points agreed by the AC at its December 2015 meeting and of the legal advice given by Prof. Sarooshi, and taking into account comments from the Presidium of the BOA;

to submit proposals to the AC at its June 2016 meeting, after discussion in B28, for reinforcement of the AC secretariat and a clarification of its position in terms of governance.

Requests the staff representation and the Trade Unions -

to acknowledge the importance of firm and fair disciplinary procedures; and to respond constructively to the initiatives set out above, in particular to work rapidly to an agreement on Union recognition without preconditions.

This is the part which was probably most controversial because it puts a certain burden on SUEPO, it is too gently worded an opposition to Battistelli, and it does nothing whatsoever to actually give the staff representatives their jobs back (pending an external investigation). The AC is trying to save face and AC folks basically try to protect their own job.

Staff’s Response (or Reality Check)

3 sources independently sent us details regarding the latest developments. We don’t really need 3 copies, but it at least helps verify the authenticity of some given material. Here is the message in full:

This beginning of the week was by any standard short but intense.

So much in front: no “big bang”, nor “door slammed”, but clear impulses have been given that will decisive be decisive for the future of the EPO.

1- Biggest Demo so far: the voice of the majority of staff is clear and loud

As reported in the media already, the demo yesterday was the best attended event so far, with over 2000 participants (according to the police). It means that again (I lost count how many), over half of the Staff employed in the EPO (including managers and staff that are requested/sick/on leave…) was physically standing in front of EPO building expressing their discontent with the situation. In the light of such clear fact, it is a puzzle how our leaders can still claim that a “large majority stands behind” their reforms… “Tunnel vision” perhaps? (see pt 3 below)

Contrarily to somewhat depressive past events, it was reported that the mood yesterday was spirited and intense, suggesting that the last events have given Staff a more optimistic outlook on the future of the EPO. In any case Staff expectations are high.

2- Staff survey preliminary results: “Black zero!” and all indicators “in the red”

The 2016 Staff Survey is now been completed. The preliminary results are accessible and brought to the attention of the Delegations of the Administrative Council yesterday. The remarkable response rate of 76% with a global response rate of 39% of all EPO staff ensures that the results are statistically significant.

The results are coherent with the past 2 surveys and correspond unfortunately to the “subjective feel” of staff (see previous point). Even if the situation is well-known to those in the machine-room (and above now), to see such a consistent worsening of the situation in quantified manner is frightening:

– the “job strain” is sliding further down in the “red zone” while “job recognition”, confidence” and “quality” are consistently falling,

– worse: with a quantum leap from 2%, in 2016 11% of staff are experiencing a “psychological distress” (anxiety, depression, cognitive troubles, etc…)

– and while his predecessor still could claim a meager 7% support, today, Mr. Battistelli can claim ZERO % confidence! – the same applies to the MAC…

In good French, “c’est un zero pointé”!

It is hard to apprehend how one can live with the knowledge that at best a handful of individuals (office-wide) have declared their confidence in your leadership. And again, it is even a larger mystery how, in the light of all these facts, one can still pretend that “large majority stands behind” his reforms… “Tunnel vision”
perhaps? (see pt 3 below)

3- “Kurz und schmerzlos”: AC gives also a “Zéro pointé” for past performance and sets new “challenging targets”

The 147th session of the AC was closed after only one short but very intense day. The mandate of the AC Chair, Jesper Kongstad, was renewed for three years. According to the President’s report , it was all congratulations for the impressive results of the EPO and support for his policies…

3.1 the president’s perception is fairly different from that of the other participants.

To paraphrase the NL delegate: “The Office has come out of its “tunnel vision”, also as regards the perception of quality. The Office must work on his bad reputation” (sic!!)

First, the delegations in the AC have been very critical about the Office and in the first place about the social conflict.

But unexpectedly the Delegates also openly questioned the “impressive results for production and quality”, advanced by the EPO.

Here some attempts to paraphrase some delegation:

– NO: “The increase in productivity is impressive, but it’s actually quite unbelievable how this has come. I am confused about the extremely positive surge. Quality is very important.”

– DE: “The social climate must be addressed.”[…]. This part in your [very long] report a bit short […] two to three pages. To put it sarcastically, one could say that there is little progress to report upon. “

– NL: “the recognition of a trade union, which represents only 1% of Staff is somewhat strange… to say the least”

And that was in plenum; The confidential points which took the whole afternoon is reported to have been even more uncomfortable.

3.2 Regarding the disciplinary cases it seems to “requests” (!) the EPOffice President

According to informal information gathered here and there, the AC has taken an unanimous decision (with several abstentions) on a Resolution which was only slightly amended version from the confidential document CA/C 5/16. The latter orients itself closely the B28 document and was signed by 19 delegations (!). We can only presume that a public version of that document will circulate in short. But in the mean-time here is what could be gathered from the somewhat

– to ensure that disciplinary sanctions and proceedings are not only fair but also “to be seen” (!) to be so, and to consider the “possibility of the involvement” of an external party (reviewer/arbitrator/mediator)… It seems also that in the mean-time running proceedings (in DH) are asked to be suspended

– submit to AC revised SR including investigation guidelines

– achieve a MoU with “both” (!) unions

– submit a proposal for structural reforms of both DG3 and Council Secretariat for June 2016, “after discussion in B28” (!)

– also as an apparent attempt to look balanced, it also requests the “SR to acknowledge the importance of firm and fair disciplinary procedures”, and be “constructive” regarding the initiatives set out above.

for the call for a mediator to solve the general issue, it seems that the President is asked to consider the possibility” of using the service of a competent external party (such as arbitrators/mediators/conciliators).

In other words:

On a first reading this may look disappointing because of the lack of immediate effect regarding our fired and disciplined colleagues. But it could also hint at the following: it looks like the president has just had his “target setting talks” with his boss who has expressed clear measurable SMART goals.

To paraphrase the Swiss delegate, Mr. Grossenbacher: “Am Anfang war er [Präsident] gut. Jetzt ist er ins Stocken gekommen… Ein deutlich vom Verwaltungsrat gesetztes Ziel in dieser Hinsicht wird ganz klar nicht erreicht“. In the new EPO career language that may be a box 7 or 8?

In conclusion the AC and the staff both expect concrete and measurable results before the end of spring. At the coming June session it is probable that the delegates will take stock and…draw consequences.

This is not over yet!: until that happens, Staff will be forced to continue and express their claims clearly.

A lot of people must have seen the above by now. When 3 people send you the same thing within one hour (minutes apart) you know that the EPO has a big problem in its hands; insiders want change very badly and they are not afraid to communicate in a way that denigrates the management or criticises in a derogatory manner some of the top bosses. We are going to get another report tomorrow. It’s about the final outcome. A source told us explicitly that “there should be some details coming out tomorrow.”

“When 3 people send you the same thing within one hour (minutes apart) you know that the EPO has a big problem in its hands; insiders want change very badly and they are not afraid to communicate in a way that denigrates the management or criticises in a derogatory manner some of the top bosses.”As noted earlier today, the strikes are likely to go on since “obviously we are not pleased,” to quote one reader, as “the general expectation is that Battistelli should go [...] the strikes are going to continue.”

This will further demonstrate a state of crisis, as recognised by the Board. To quote one reader, “we´ve tried to see the positive side of it, i.e., maybe in the next meeting he will be removed, since one cannot expect him to agree to anything SUEPO proposes [...] at least now he has to carry out some steps imposed to him [...] if he leaves all the pieces of the domino will fall [...] all the French guys plus the incompetent vice-presidents [...] one can imagine that a lot of people expecting promotions to PD or VP are pissed of at Battistelli´s nepotism.”

While this may be true, Battistelli became an icon or a symbol of EPO abuses. If he stays in, it will only turn out to be a profound image and publicity disaster. The sooner the EPO gets rid of him (and his bunch), the less further damage the EPO as a whole will suffer. He cannot compromise with SUEPO, as he can barely accept/tolerate delegates or politicians who disagree with him. It increasingly looks like an issue of character.

“…one can imagine that a lot of people expecting promotions to PD or VP are pissed of at Battistelli´s nepotism.”
      –AnonymousWe previously took note of Grossenbacher’s proximity to Battistelli, but now it sure looks like even Grossenbacher hasn’t positive things to say about Battistelli. When even Grossenbacher is upset at or disappointed with Battistelli it means that there are barely any allies left. We asked around for more information about the quote above (“Am Anfang war er [Präsident] gut. Jetzt ist er ins Stocken gekommen… Ein deutlich vom Verwaltungsrat gesetztes Ziel in dieser Hinsicht wird ganz klar nicht erreicht“).

“My translation,” told us one reader is: “At the beginning he [the President] was good. Now he is faltering. An objective which was clearly set by the Administrative Council was very clearly not reached.” █

“The statistics on sanity are that one out of every four Americans are suffering from some form of mental illness. Think of your three best friends. If they`re okay, then it`s you.”

–Rita Mae Brown

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Patents Roundup: EMC, Pure Storage, OpenTV, Apple, Segway, and Alice (Software Patents)

Posted in America, Apple, Patents at 3:53 pm by Dr. Roy Schestowitz

Segway claims ownership of hovering now

Summary: An outline of recent developments in the United States, where companies that are very large (not just patent trolls) utilise software patents to gain an edge over the competition… by simply suing the competition

EMC Patent Aggression

Almost every company that accumulates and amasses patents eventually becomes a software patents bully. Weaponisation of patents is like an insurance plan, a safety net or a Plan B for times when the company is struggling. Look at Apple, Microsoft and more recently Facebook and IBM. EMC isn’t doing particularly well and as yesterday’s and today’s news helps remind us [1, 2, 3, 4, 5], the company now uses patents to sue rivals. As The Register summarised it, we speak about:

Patent 6,915,475 – EMC dropped it from the suit.
Patent 8,375,187 – District court summarily ruled against EMC.
Patent 7,434,015 – District court found Pure did infringe aspects of it; jury trial said patent was valid, and awarded damages.
Patent 6,904,556 – Jury trial ruled Pure did not infringe.
Patent 7,373,464 – Jury trial ruled Pure did not infringe.

EMC will increasingly struggle against Free software and other disruptive strands of technology, so it will resort to more patent aggression for revenue. Be prepared. EMC owns VMware, which is run by people from Microsoft now.

OpenTV Shows Apple the Wrath of Software Patents… in Germany

“EMC will increasingly struggle against Free software and other disruptive strands of technology, so it will resort to more patent aggression for revenue.”Apple should join the fight against software patents rather than use them against Linux for lawyers' benefit. But Apple is too stubborn and too arrogant to admit its error. Based on this new report from Reuters, Apple has just lost another patent case, this time in Germany (which is notorious for being lenient on software patenting compared to the rest of Europe).

We stumbled upon over a dozen articles about this in the afternoon, not because it’s important but because it’s Apple. Corporate media works like that. 18 articles about this outcome (within about 8 hours) showed up [1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18]. This can hopefully be discussed in the context of patent scope, just like the FBI case — a case that demonstrates Apple and media fascination. If it wasn’t involving Apple in any way, there would probably be not a single article about it. For-profit media writes about what can bring income/hits (profit as priority), hence it loves writing about Apple. Nevertheless, none of the articles we found questioned the existence of these patents, which are on streaming.

“Hoverboards” Killed by Patents

“Many people always wanted “hoverboards”; well, thanks to patents they may have to wait forever, or simply find them priced way out of reach.”Apple loves using the ITC to pressure companies it sues to just give up and pay up. This new article helps remind us of the role of embargoes in the market. Pieter Hintjens (former FFII President) put it sarcastically by saying: “Once again patents succeed in killing competition. Without patents, no-one will invent anything, right?”

Here is one article about it, from an opponent of patent trolls:

A patent complaint that Segway filed with the US International Trade Commission in 2014 has resulted in a wide-ranging order banning “personal transporters” that infringe some of its patents.

On Wednesday, the ITC issued a general exclusion order banning several types of the self-balancing devices, often called “hoverboards.” The case could affect the whole market, since a general exclusion order is the commission’s most powerful remedy and can affect even parties not involved in the investigation.

There’s also a limited exclusion order issued directly against the products of several Chinese companies sued by Segway. Only one of those companies responded and fought the case at all, while the others were in default.

Proponents of patent trolls (IAM is even funded by them) put it differently and put lipstick on the embargo pig:

The US International Trade Commission (ITC) this week wrapped up a Section 337 patent infringement investigation initiated by Segway, and its decision is set to have a big impact on a market for self-balancing personal transports that has come back to life over the past year. In a twist, Ninebot – one of the Chinese companies named as a respondent in the original complaint – is now set to become the key beneficiary of the ruling in Segway’s favour.

Many people always wanted “hoverboards”; well, thanks to patents they may have to wait forever, or simply find them priced way out of reach.

Section 101 (Software Patents Too Abstract)

“Is the EPO paying attention at all when a European company, Mercedes, becomes the victim of software patents?”Software patents are under severe pressure in the US right now. Some older articles from Bilski Blog speak of Section 101 rejections and give new examples of patents which are found invalid under that section. Here is the Vehicle Intelligence case which we recently wrote about quite a lot. They have taken on the giant, Mercedes-Benz, in an effort to extract money. “Vehicle Intelligence,” Bilski Blog writes, “involved U.S. Patent 7,394,392, written by a patent attorney, on the use of expert systems to determine whether an equipment operator–e.g., the driver of a car–was impaired from intoxication, fatigue, physical disability, or other factors. [...] Under the Alice test, if the abstract idea is really this general, then using an expert system is “significantly more.” An expert system is not a native component or functionality of a generic computer system, but a highly specific type of artificial intelligence–different in both design, architecture and application from other types of AI systems. And if the game of patent eligibility is played on the borderless field of analogy, it is easy to argue this claim is like the claim in Diamond v. Diehr, in that it involves continuously measuring a physical variable (screening the equipment operator here, measuring the temperature in the rubber mold in Diehr) and then performing a control action in response to the result (controlling operation of the equipment here, opening the rubber mold in Diehr). If Diehr was eligible so too is this.”

Notice the role of the Alice test. Is the EPO paying attention at all when a European company, Mercedes, becomes the victim of software patents?

Based on this latest outline from Dennis Crouch, Alice isn’t going to be challenged (at least in SCOTUS) any time soon. █

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On Bristows LLP and Other Self-Serving Non-Practising Voices for Software Patents and UPC Injustice

Posted in Asia, Europe, Patents at 3:04 pm by Dr. Roy Schestowitz

People who never wrote a single line of code are among the biggest proponents of software patents

Summary: Bristows LLP, also known as Bristows UPC, keeps pushing for UPC (and by extension software patents) in the United Kingdom

THE ONE thing we noticed while covering the EPO for almost a decade is that the same people who want (and sometimes lobby for) UPC or its predecessors (by other names) were also in favour of software patents in Europe. It’s not entirely a coincidence because the UPC would lead/pave the way for an open door to software patents (more so than right now, where loopholes are still required).

“The UPC isn’t even necessarily happening, but those who lobby for it want everyone to believe that it will definitely happen and the only remaining question is, will Britain be part of it?”It hasn’t been so hard to become familiar with firms that consistently lobbied for the above (not indirectly through hired lobbyists). Bristows LLP was always one of them (Bristows UPC after it was sort of renamed for marketing/strategic purposes) and here is a loaded, silly question from Bristows. To quote: “Question from the audience at Bristows seminar: If Brexit happens, will there be British judges in the #UPC? A: No.”

If Brexit happens, will Bristows lose money? A: Yes. Because it put its eggs in this one basket.

The UPC isn’t even necessarily happening, but those who lobby for it want everyone to believe that it will definitely happen and the only remaining questioning is, will Britain be part of it? These are self-fulfilling prophecies in action and they serve to highlight the dishonesty which exists among some patent lawyers. Other than Britain there is also Spain which stands in the UPC's way.

“The bottom line is, there is a conflict going on which is reducible to class war (the rich against the poor) and it involved patent scope.”The Bristows folks presently act, e.g. in their blogs, as though Bristows is now a ‘think tank’ (part of the conspiracy of patent lawyers who try hard to make the UK join the UPC). This is a scandalous sham given that the British public is never at all consulted; it’s a sort of collusion, a TTIP/TPP-like corporate heist (with ISDS), and an attack on British democracy (for profits of those who are already super-rich, obviously).

Speaking of lobbyists for software patents, recall the recent heated debate about software patents in India and watch how corporate media in India (Times of India in this case) lets an anonymous sort of lobbyist of software patents speak out unchallenged (no balancing voice/s there). “Startup India may be non-starter if patent office has its way,” says the headline. In case it’s not obvious, startups are the main sufferers from software patent and there’s nothing for them to gain, unlike Microsoft or IBM. These are the sorts of firms that lobby for software patents in India and they are not even Indian. We can only attempt to guess who’s behind this misleading article.

The bottom line is, there is a conflict going on which is reducible to class war (the rich against the poor) and it involved patent scope. █

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Institutional Failure and Dirty Tricks: Benoît Battistelli Seemingly Gets Support Like Microsoft Gets Support

Posted in Europe, Microsoft, Open XML, Patents at 1:38 pm by Dr. Roy Schestowitz

When all votes count as equal…

Published only hours ago. Where next? Croatia?

Also see: Benoît Battistelli: “An Earthquake Would be Needed for the Administrative Council... Not to Support My Major Proposals.”

Summary: Today’s reminder that Battistelli is not at all monitored or ‘bossed’ by the Administrative Council, which he not only comes from but also offers incentives to (days after waving EPO money at Dutch politicians in an effort to influence them to place the EPO above the law)

BACK in the days — nearly a whole decade ago — we used to thoroughly cover Microsoft’s use of corruption to make Microsoft Office an ‘open’ ‘standard’. Given enough money, power, connections etc. one can conceivably achieve anything, especially in poor countries where even dental treatment is a massive treat. Remember that Microsoft offered financial incentives to entire countries (or politicians’ own cities) in an effort to buy their votes. Conversely, sometimes blackmail gets used (“do what we say, or else…”). We covered examples of that. Well, Microsoft still relies on bribes (to officials) to get business 'done'.

The EPO, which is especially close to Microsoft, is hardly any better. Rather than label itself a private or ‘public’ (in the shareholders sense) corporation it is an international body that acts like a corporation and enjoys exemptions from the law. It even calls itself “European”, even though the only European thing about it is the staff. The EPO is connected to some very powerful people from all over the world and therefore it guards powerful people, obviously at the expense of ordinary Europeans. Battistelli is a good example or a symptom of this, for reasons we covered here many times before. Battistelli often looks more and more (at least appears to outsiders) like he’s carrying out the orders or instructions of somebody else (or many somebodies). The way I personally look at it (yes, personally), Battistelli is the first domino piece to fall and serve as a deterrence against those who follow his footsteps and implement so-called ‘reforms’ that abolish human rights, commonwealth, etc. Next on the list might be Kongstad, e.g. for protecting Battistelli for many years and then hiding his contract. EPO workers need Kongstad to get Battistelli out, but they won’t see it any time soon because Battistelli is Kongstad’s predecessor and the latter now acts more like his guardian (we first pointed this out in 2014). In order to implement popular change (not corporate/billionaires’ change) at the EPO, the Administrative Council too needs to be tackled. They’re mostly lawyers from national patent offices, they’re not scientists or examiners. They too need to be shaken a bit. Then, staff may move on to other culprits (whose power if not reputation as well will be simpler to destroy based purely on their unethical actions, as they’re low-profile people compared to Battistelli and Kongstad).

“Well, Microsoft still relies on bribes (to officials) to get business ‘done’.”The EPO scandals will surely outlive Battistelli and Kongstad, so EPO staff should be prepared for a longer struggle before sanity is restored, the EPC is obeyed, human rights are respected and so on.

As one reader put it the other day: “It can be a course of events, but I am afraid the domino effect might not be as automatic as we wish. For sure active pressure, e.g. by media and union action, will be needed and still well organized. Laws in and about EPO are murky, so that no matter how unreasonable and indefensible some managers’ behaviour might be, they might still get away with it.

“Another key factor would be to get ever more examiners getting out of the dark when showing support and denouncing abuses. This could set the beginning of an end, so to say.

“Another key factor would be to get ever more examiners getting out of the dark when showing support and denouncing abuses.”
      –Anonymous“If Battistelli’s and/or Kongstad’s ditching takes longer than this year, we might lose the momentum, with examiners retreating their heads in their necks and Union back in its self-referential playing of pretending to be Machiavellis they never were, and as if they have a hundred years to play about.”

Earlier today some people’s hearts sank because they came to realise that the Administrative Council is not on their side. Doctored results and fake union recognition at EPO apparently fooled those who wished to be fooled. This didn’t surprise us at all, but it’s only an expected step, probably to be followed by strikes.

In the mean time, as there is a personal aspect to my activism/reporting in this area (I am a software engineer worried about software patents), I decided to also take personal action and therefore contacted some delegates. I sent them the following message a few days ago:

I am writing to you as a concerned European and as a software professional based in the UK. As you may know, the management of the EPO is under heavy attack for its mistreatment of staff, which even led to an imminent Office-wide strike and resulted in staff suicides (see TV coverage from earlier this month in Germany). However, I am a lot more concerned at the moment about a parade of misinformation, intended to distract from this and also mislead delegates of your country, who shall soon be attending the Administrative Council meeting in Munich. I want to keep this short, so let me highlight two kinds of lies you may be told by the EPO. The first lie concerns so-called union recognition. There is no such thing at the EPO, except a quasi-staged signing of a Memorandum of Understanding with a tiny union that hardly represents even 1% of staff at the EPO (the real union represents about half of all staff). This is intended to lull delegates into the illusion that relationships between staff and management have improved. It’s far from the truth. In fact, over 91% of staff which voted on a strike last week voted in favour. EPO workers are unwilling to tolerate the abusive management, in spite of their salary and despite the risk of voting in favour of a strike (the ballot provides no real privacy). The second point I must stress is that when the EPO claims improved performance, efficiency, results etc. these claims must be regarded as dubious/questionable at best. Numerous people, professionals in the field in fact, have already demonstrated that the EPO uses misleading statistics in order to give an illusion of success. This, in their minds, is intended to distract from (or justify) the aforementioned abuses and consequent unrest.

Over the past few months I’ve covered examples where the EPO lies not only to staff but also to journalists. In a desperate effort to salvage their reputation they are now creating an alternate reality. Sceptical analysis of EPO claims thus becomes a survival skill.

I want to see the EPO repaired. I wish to see it serving the European people and European interests. Right now the EPO is merely being used by very few people to advance their personal interests and this is unsustainable. It will, over the long run, damage Europe’s science, technology, and reputation.

My sincere regards,

Roy Schestowitz

Judging based on the message from John Alty today (UK-IPO), whom I contacted a few days ago, there’s no pleasant surprise, just the expected complicity. “Just back from @EPOorg Council meeting,” he wrote. “Strong statement of Council’s expectations to encourage improved social engagement.”

“Amid abuses that are widely recognised both at the EPO and outside of it the ‘opposition’ sounds like not even a slap on the wrist (hardly even that).”It’s hardly a strong statement. Amid abuses that are widely recognised both at the EPO and outside of it the ‘opposition’ sounds like not even a slap on the wrist (hardly even that).

Earlier today one anonymous person sent us a stream of messages about the outcome of the Administrative Council meeting. Among them:

• “Unfortunately hard measures against Battistelli are off the table! The AC welcomed the impressive results for production & quality.”
• “In order to address the social issues, the AC and Battistelli jointly agreed to launch a programme of actions to be implemented in the coming months.”
• “The revision of the investigation guidelines, which was launched by the office in January, and the revision of disciplinary proc.”
• “of course they do however the supreme question here remains unanswered, that is… who is the axis of evil? BB of the AC?”
• “That was the biggest mistake ever and I warned in the past. Clearly a conflict in interests.”
• “well it isn’t over yet, we need to wait till the end of the day to get a real picture of the situation, let’s keep our fingers”
• “that is in preparation and the next logical step. Sad to say that a few thousands of staff members will be downhearted today!”

“It was rather unlikely all along that Administrative Council folks would be the ones to take serious action against Battistelli; not therein lies redemption anyway (the Administrative Council is simply too self-absorbed to care about EPO staff).”My response to the above was, EPO workers should go on strike and denounce not only EPO management but also the Administrative Council for being supine, complicit, and disinterested. It was rather unlikely all along that Administrative Council folks would be the ones to take serious action against Battistelli; not therein lies redemption anyway (the Administrative Council is simply too self-absorbed to care about EPO staff). This one comment which we received earlier today put in context this EPO announcement (warning: epo.org link) that we had noticed hours earlier. There is also this post-meeting hogwash (warning: epo.org link) for those who believe what the EPO says to the media. The latest EPO propaganda now tries to paint the Office as poor-friendly/SME-friendly (a total lie amid PACE propaganda in Twitter today, as well as more from Finnegan, Henderson, Farabow, Garrett & Dunner, LLP) and also serves to highlight what may have happened behind the scenes. In the words of the commenter:

I see Mr. Battistelli has signed an agreement to subsidize searches carried out for Lithuanians as for “Cyprus and other member states”. Only a cynic would suggest that this is a mechanism to encourage these states to support him in the AC.

EPO link: http://www.epo.org/news-issues/news/2016/20160317.html

Some believed that Battistelli had "bribed" lower management for support (like Microsoft did for OOXML at ISO) and now again some interpret that as a bribe. This is not sufficient evidence, but still, it cannot count for nothing at all. There is at the very least a perception that Battistelli gave some gifts and got one back. Remember Battistelli’s money-waving strategy when dealing with Dutch politicians. It hardly works in rich countries.

There is already an article about this latest development. It comes from NRC. Human-corrected machine translation of this article was provided, as usual, by Petra Kramer, who put it as follows:

EPO Member States want fair sanctions

[Kramer: They changed the headline. First it was “After criticism EPO workers now getting fair sanctions”
see: http://drimble.nl/overige/business/34514479/na-kritiek-krijgen-werknemers-europees-octrooibureau-nu-eerlijke-sancties.html]

Majority votes for compromise over sanctions

The controversial punitive measures for employees of the European Patent Office, with among others an office in Rijswijk, are to be reviewed. With 12 abstentions 26 of the 38 Member States of the office Wednesday in Munich have voted in favour of fair sanctions, sources confirm.

The international organization (7,000 employees) accepts patent applications and grants European patents. The position of the President of the Agency, the Frenchman Benoît Battistelli (65) is under pressure because of his “authoritarian” management style. During a critical interview in early March with State Secretary Martijn van Dam (Economic Affairs, Labour Party) which Battistelli left in anger, this newspaper reported Wednesday.

The Governing Council, the highest body consists of the 38 member states, including the Netherlands, have great concern about the dismissal and demotion of three members of SUEPO trade union and the works council. So far Battistelli showed not to be very receptive to this criticism. In leaked minutes of February, the board of the Management Board described the situation as “a crisis.”

The council, which met Wednesday and Thursday in Munich, would rather an external investigation into the sanctions. In today’s resolution, which today is made public, that demand has been weakened. Battistelli must now consider an investigation or intervention through mediation or arbitration. The management board calls the patent office and the trade union to resume social dialogue and to reach an agreement. The president has embraced the content of the resolution, according to the patent office.

As an international organization the patent office claims not to be bound by national labour law. Battistelli does not recognize SUEPO union, which represents half of the total staff, either. The patent office has its own disciplinary procedures and an internal investigation service to screen workers. The method of this investigation service and the penalty rules are to be revised.

It is unclear what will happen to the trade unionists who are punished because of a “corruption campaign.” The Dutch Elizabeth Hardon, chairman of SUEPO in Munich, was fired and her pension was reduced. Her predecessor Ion Brumme was fired and the treasurer of the union, Malika Weaver was cut in her salary. Other members of the union have received official warnings.

Lawyer Liesbeth Zegveld of the union calls Battistelli to undo the dismissals and demotion. “Battistelli abuse of his authority and power as he decides to expel the three union officials in Munich,” said Zegveld. “He is thus acting in blatant contradiction with the express wish of the Member States to improve social conditions and to protect the union.”

Notice that the above cites/quotes documents we leaked last night (at around 2 AM).

Is the EPO peaceful now? No.

“For the second day in a row in Twitter, the EPO lobbied for software patents (using the weasel word “ICT”) and will do the same tomorrow.”There will almost certainly be strikes soon.

Is the EPO’s propaganda over? No.

For the second day in a row over at Twitter, the EPO subtly lobbied for software patents (using the weasel word “ICT”) and will do the same tomorrow [1, 2]. The EPO arrogantly stomps on the EPC as nobody seems to be able to stop it. These liars keep citing their own bunk 'statistics' today [1, 2, 3], even when there are demonstrable issues with these. IAM ‘magazine’, which unwittingly uses a survey to give Battistelli his usual propaganda/ammunition, is now offering gifts in exchange for participating in the latest round of propaganda (maybe SUEPO's surveys scare Battistelli a little too much). █

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Links 17/3/2016: 3 Stable Linux Releases, Elive 2.6.18 Beta

Posted in News Roundup at 11:24 am by Dr. Roy Schestowitz

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Investigation Into Working Conditions at the European Patent Office Will Commence

Posted in Europe, Patents at 6:41 am by Dr. Roy Schestowitz

Martijn van Dam goes ahead with the plan

Summary: Increasing acceptance and acknowledgement of the human/labour rights issues inside the European Patent Office (EPO), as recognised even by host nations such as the Netherlands

THE EPO turns out to be a terrible place to work at/for. A TV program previously explained why, helping those who don’t actually work at the EPO get a glimpse from the inside (witnesses were anonymised).

Benoît Battistelli nearly had an opportunity to de-escalate, but he blew it and exploded with his notorious temper. Human-corrected machine translation of this article has been provided to us by Petra Kramer. It covers this week’s encounter/rendezvous involving Martijn van Dam and Benoît Battistelli.

Fruitless conversation with controversial patent boss

THE HAGUE / RIJSWIJK (Reuters) – CEO Benoît Battistelli is accused of conducting a reign of terror at the European Patent Office, but a “firm” interview that Secretary Martijn van Dam (Economic Affairs) held with the highest boss yielded nothing. The European Patent Office is an international organization with 38 Member States, including all members of the European Union. Rijswijk is is home to one of its offices.

“The call, to my disappointment, has not led to any new perspectives,” Van Dam wrote Wednesday to the House of Commons. The House, as the government, is deeply concerned about the leadership of the patent boss which has been described as a “tyrannical”. Those concerns have been brought over in vain by Van Dam on 4 March.

There will be an investigation into the working conditions at the Patent Office, Van Dam announced earlier this year. When workers protested against poor working environment and against the dismissal of colleagues who criticized the Frenchman Battistelli. The agency is to reorganize and the government and parliament already have made it known that it should implement those reforms more carefully.

As the latest staff survey comes to show, staff is suffering and the working conditions have deteriorated severely. An external probe is desperately needed now. █

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Patents Roundup: Software Patents After Alice, Apple and Samsung, Jawbone and Fitbit

Posted in America, Apple, Patents, Samsung at 6:23 am by Dr. Roy Schestowitz

Credit: Bilski Blog

Summary: A bunch of stories of interest regarding the USPTO, which is the world’s most dominant patent office

THIS is the latest update regarding the US patent system, which increasingly shows some positive signs (getting tougher on software patents) but still facilitates a lot of avoidable aggression, and not just by patent trolls.

AliceStorm Versus Software Patents

“The US patent system (or Congress) needs to reconsider whether software patents should be issued at all.”Bilski Blog calls/dubs "AliceStorm" the phenomenon of patent squashing after Alice (2014). A lot of these are software patents, which are abstract. Looking at some of the latest posts about this [1, 2, 3] (the last one was cited here before), we now have the chart at the top. It shows that most of the time, by a large margin, Alice successfully buries software patents. The USPTO needs to heed the warning from courts (not just the Supreme Court but dozens more). The US patent system (or Congress) needs to reconsider whether software patents should be issued at all.

Apple and Samsung

Apple started attacking Samsung several years ago because Apple cannot compete based on merit. Apple wants to make Android more expensive and also Apple’s cash cow. That is similar to what Microsoft has been doing. “Samsung and Apple Were Top Targets for Patent Suits in 2015″ says a new headline from Fortune, noting:

The country’s two most popular phone makers, Apple AAPL and Samsung, are still getting smacked by dozens of lawsuits from so-called “patent trolls,” which are shell companies that make no products.

Meanwhile, a single district in Texas, which the late Justice Antonin Scalia once branded a “renegade jurisdiction,” continues to occupy an outsize role in this ongoing patent pileup.

Those are two of the most notable takeaways that can be found in a new report on U.S. patent trends in 2015. Published by patent analytics firm Lex Machina, the report adds new grist to a debate over U.S. innovation policy at a time when patent reform in Congress has foundered once again.

“With Alice still fresh in people’s mind (although apparently forgotten by some Justices, based on newly-circulated rumours), Apple is likely to lose.”“Blame Texas for the latest patent pile-up falling on Apple and Samsung,” says this person, cited by Florian Müller who added this Friday watchlist alert. Müller wrote: “Earlier this month (on Friday, March 4), the Supreme Court of the United States already had Samsung’s December 2015 petition for writ of certiorari (request for Supreme Court review) in Apple’s design patents case on its agenda. It’s nothing unusual for a case to be relisted, and it happened in this case. There was no weekly conference last Friday, so this cert petition will be discussed this week, and we’ll know the decision (unless there’s another relisting) on Monday morning.”

It is possible that SCOTUS will deal with at least one case that Apple brought against Samsung. With Alice still fresh in people’s mind (although apparently forgotten by some Justices, based on newly-circulated rumours), Apple is likely to lose.

Jawbone and Fitbit

Involving some more design and software patents, the Jawbone and Fitbit story was covered here several times in the past. Here is the latest on that: “For nearly a year Jawbone and Fitbit have been in the courts and Jawbone just threw down new allegations. In a motion to amend the original filing, Jawbone wants to add a new defendant to the case that formerly worked at Jawbone but defected to Fitbit, bringing a host of confidential information along with her. Jawbone also now contends that this person, along with previously named defendants, lied under oath that they had returned all confidential Jawbone information prior to leaving the company.”

“Nobody wins except the lawyers. These cases drag on for ages.”There is a lot more coverage about it this week [1, 2, 3, 4, 5, 6] and it comes to show just what a sordid mess patent wars have become. Nobody wins except the lawyers. These cases drag on for ages.

Miscellany

A new article by Dennis Crouch says about a particular low-profile case that: “The original panel found that the sale constituted an invalidating on-sale bar. Of interest here, the “sale” was Ben Venue’s “sale of services” to manufacture the patented product-by-process rather than sales of the product themselves. The original panel found no principled distinction between these concepts – thus applying the on sale bar. Because the ‘sales’ at issue were associated with MedCo’s ‘validation batches,’ the patentee has also now argued experimental use.”

“If patents are about common good rather than protectionism for a few, then China should follow the will of its people, not of its patent lawyers (whose clients are often foreign).”Notice how far patents can go; even “sale of services”, not just manufacturing or sale of manufactured goods. How far can this go? Western patents, as this article from MIP suggests, can also be imposed on manufacturing giants/superpowers such as China. Why would China even entertain this? It’s not in the interests of China, that’s for sure, as most companies already manufacture everything in China. They hardly have a choice. “In determining the scope of patent protection in China,” MIP wrote, “the question of support for the claims has come into focus, particularly for bio-medical inventions. Wenhui Zhang and Stephen Zou review some recent decisions” (from China).

As we noted in relation to India the other day, patents on medicine are in no way beneficial to the interests of a large population such as China’s. If patents are about common good rather than protectionism for a few, then China should follow the will of its people, not of its patent lawyers (whose clients are often foreign). █

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