04.03.15
Posted in Europe, Patents at 6:04 am by Dr. Roy Schestowitz
Summary: An article from “De Telegraaf” (with translations) helps provide insight into Battistelli and his disgraced allies
THE EPO has had a calm week. Easter offers no major news, except some minor bits about the boards, so we wish to finally share a lot of material which needs to be meticulously documented.
Articles from “De Volkskrant” (see press coverage) and “De Telegraaf”, along with multiple translations, were sent to us last month, contextually accompanying despite them preceding reports about the disgraced (over payment to drug traffickers) Ivo Opstelten. “Recent Dutch newspaper articles with translations,” as one source put it, had been made available (we don’t know who made the translations), with “publication date of the original articles [being] 26 Feb. 2015.”
Here is the article in English, French and German [PDF]. To quote the English version in full:
Thursday 26 February 2015
Opstelten ignores Court of Appeal ruling
THE HAGUE – Minister of Justice Ivo Opstelten has binned a ruling of the Court of Appeal in The Hague. According to the Court of Appeal, the European Patent Organisation (EPOrg) breaches the rule of law. However, Opstelten states that the European organisation enjoys immunity.
Photo: Serge LIGTENBERG
According to de Volkskrant.
For years there has been a conflict at the EPOrg between management and a large portion of the employees. In order to counter organised opposition, the management of the organisation has, amongst other things, blocked email communication between the unions and their members. The trade unions are also not welcome at the negotiation table.
According to the Court of Appeal, those measures are in conflict with the European Convention on Human Rights (ECHR). The Court of Appeal acknowledges that the Patent Office can claim immunity but this autonomy does not stretch so far ‘that the EPOrg could breach generally recognised fundamental rights in Europe’.
“Basically,” said our source for this, “the material consists of recent newspaper articles,” but as we shall show in the next post, these articles were only the beginning as they soon led to a major national debate in the Netherlands and shortly thereafter Opstelten resigned in shame. It is quite miraculous that Benoît Battistelli has not resigned in shame too (not yet anyway). █
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Posted in Free/Libre Software, FUD, Microsoft, Security at 5:56 am by Dr. Roy Schestowitz
Summary: Two sources of fear uncertainty and doubt (FUD) against Free/Open Source software (FOSS) find themselves fused together
THE firm known as Black Duck recently admitted its roots in GPL FUD, not just in Microsoft (the founder's employer for many years). Black Duck recently took advantage of perceptions of FOSS security issues (using bugs with “branding”) to market its proprietary software products. A press release now informs us that VeraCode’s co-founder is joining Black Duck. We wrote about Veracode at Techrights several times before. Black Duck and Veracode have much in common, with examples such as security FUD that has “branding” to act as a stigma against Free software, as we recently (earlier this year) saw (both Black Duck and Veracode have been doing this in recent months). We are sure they’ll have a lot of experiences to share and many strategies to sell based on fear, or even create this fear by appearing in the media with famous brands such as “GHOST”, “Shellshock”, and “Heartbleed”. █
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04.02.15
Posted in Free/Libre Software, Microsoft, Open XML, OpenDocument at 11:29 am by Dr. Roy Schestowitz
Summary: Microsoft’s lobbying apparatus is trying to hook entire nations into PRISM (i.e. NSA espionage) with proprietary Microsoft formats and proprietary software, especially now that nations have policies in place and Free software available which renders Microsoft obsolete
DESPITE Microsoft’s gross behaviour and sheer influence in the Indian government, the Government of India recently managed to pass new laws in relation to software, making Free software a necessity (to what degree depends on the article one trusts the most, as there have been at least a dozen of them in English). This makes perfect sense for a software powerhouse like India. It would benefit local industries. India can be self-sufficient in the software sense.
Meanwhile, here in the UK the government managed to pass pro-ODF policies, despite lobbying by Microsoft, its proxies, and its British partners. We covered this last year and we played a role in giving feedback to the government, at the expense of many hours and as much as one day’s work. We now have what can be cautiously labelled Free software-friendly procurement policy even in the UK, which has historically been one of the most Microsoft-friendly countries in the world.
“We now have what can be cautiously labelled Free software-friendly procurement policy even in the UK, which has historically been one of the most Microsoft-friendly countries in the world.”Microsoft is of course not accepting defeat. It is now pretending to be “Open Source”, starting with lies about the status of .NET, accompanied by concealment patent issues (as with OOXML) and openwashing of Visual Studio — an integral part of .NET — even though it’s a mischievous distortion of facts. Microsoft pretends to be “Open Source” because it wants a loophole into government contracts even where governments strictly require Free software and open standards. A new article by Liu Qihao & Ciaran O’Riordan highlights the reality behind so-called ‘Open Source’ .NET. The instruction states:
Microsoft is publishing the source code to certain parts of .NET. The terms of distribution (the licence) is the combination of the MIT licence and a separate patent promise. Given that Microsoft has a history of aggressively using software patents against free software, we decided to take a look at the legal details.
The conclusion is as follows:
If you only intend to use the software as published by Microsoft, then everything looks fine. The patent promise (if it’s even necessary) will apply. If you intend to modify the code, then the protections of the patent promise may be necessary or useful and you should take care. And if you’re looking for a project to contribute to, then it would be worth giving your preference to projects which don’t contain conditions which create or suggest patent risks if the code is used in other free software projects (outside of the set of .NET Runtime projects).
So it’s basically false marketing, as one should expect from Microsoft. The Economist has just released a horrible Microsoft puff piece (more like an advertisement in article form), misleadingly titled “Opening Windows”. Opening, really? As in “Open Source”? The article, written in Redmond, says: “At an event in San Francisco last October Mr Nadella showed a slide that read: “Microsoft loves Linux”. In contrast, Mr Ballmer once called the open-source operating system a “cancer”.”
Paul Krill, a Microsoft-friendly writer (for many years now), has meanwhile published “Windows goes open source?” (not April’s Fool). Paul Krill consciously (or not) helps Microsoft openwash Windows, pretending there are such legitimate claims as policies in governments change to require “Open Source”.
What we have here is a misinformation campaign. You love Open Source? Then you will love Microsoft. That’s the (almost) daily message from your Microsoft-affiliated and at times Microsoft-bribed friends (acting as ‘reporters’).
Here in the UK our government is apparently so dumb that even when it adopts ODF as the editable documents standard and asks for Free/Open Source software it remains stuck with the prospect of blobs from Microsoft. Regarding an article that seeks to associate Microsoft with ODF, iophk told us: “In practice it is unlikely that it will actually comply with the standard.”
This relates to statements like this one from Linda Humphries, titled “Making document formats open, it makes them better” (the same applies to software, not just data).
Francis Maude has just met (i.e. lobbying) with a Microsoft liar, Michel Van der Bel (see her mentioned in this older post). Microsoft pretends that it can deliver ODF support and that therefore the government’s requirement (ODF) and preference (Free software) should be compatible with Windows and Office. To quote the article: “Stanchak said Cabinet Officer minister Francis Maude met with Microsoft’s UK country manager, Michel Van der Bel, to discuss the company’s work on open standards to enable universal document access across government departments.
“Maude said the use of ODF will deliver significant savings to the public sector.
“”This will give people more choice about the software they use. This supports our digital by default agenda, which is helping save citizens, businesses and taxpayers £1.2bn over this Parliament as part of our long-term economic plan,” he said.
“The update comes despite Microsoft arguing last year that its own Open XML file format is more widely adopted than ODF and therefore should be on the government’s approved format list.”
So Microsoft attacked ODF and now it wants to be part of ODF. Is that how it works? The UK government should shun Microsoft. As this other new article reminds us: “In 2014, Microsoft went against the government’s request to support ODF, claiming its own XML format was more heavily adopted. The UK government refutes the claim, stating that ODF allows users to not be boxed into one ecosystem.”
Microsoft now pretends otherwise. More lies from Microsoft UK, an opportunist with NSA connections. The British government’s decision on office suites (if they’re needed at all) shouldn’t be about picking a ‘cloud’; it would be a privacy farce. If the government was ever to adopt Microsoft ‘cloud’ (i.e. NSA PRISM with that glorified ‘cloud’ buzzword which appeases non-technical people), would it be sued by any British citizens for supporting espionage by foreign spies? A lot of personal data is being encoded and stored in such documents. In the past, for NSA to acquire data/files from Office it needed to use Microsoft’s Windows back doors. With Office 360 [sic.] it’s becoming trivial. Microsoft is in PRISM.
The British government needs to adopt Free software such as LibreOffice and stop wasting time being lobbied by the company that attacked open standards and Open Source software like no other company in the history of computing. █
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Posted in Europe, Fraud, Patents at 3:55 am by Dr. Roy Schestowitz
Summary: Battistelli faces yet another embarrassment as the man who defended his assaults on EPO staff, Ivo Opstelten, turns out to be little more than a thug in a suit
WHY does Battistelli tend to find himself surrounded by thugs and corrupt officials? Željko Topić, EPO Vice-President and Battistelli's right-hand man, faces many criminal charges. And that’s just one of several men. Perhaps it takes thugs to defend a thug, but the reasons could go deeper than this when exploring the networks and power of influence, especially in Europe. Battistelli is strongly connected to ENA (Ecole Nationale d’Administration) and there seems to be a link between Topić and Ivan Šimonović, both of whom are strongly linked to Ivo Sanader, who is in prison.
The Dutch Justice Minister, Ivo Opstelten (not to be mixed with Ivo Sanader), who intervened to prevent execution of the judgment in favour of EPO staff, fits a pattern.
“Newsflash from the Netherlands,” told us a reader nearly a month ago, “Dutch ministers Opstelten and Teeven quit over payment to drug-trafficker” (quitting under such circumstances can help evade legal action).
Links to some news reports (British and Dutch media):
To quote the BBC, “Dutch Justice Minister Ivo Opstelten and his state secretary, Fred Teeven, have resigned after misleading parliament over a 2001 compensation payment to a convicted drug trafficker.”
So here, once again, Battistelli is basically defended by a bunch of opportunistic corrupt/crooked people in positions of power. █
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Posted in Site News at 3:37 am by Dr. Roy Schestowitz
Summary: An article from “de Volkskrant” with translations, regarding Benoît Battistelli and the now-disgraced Opstelten who defended Battistelli’s assault on staff
FIVE weeks ago the Dutch media covered the situation at the EPO. One piece came from de Volkskrant, with “a circulation of approximately 250,000 nationwide.” We now have English, French and German translations [PDF]. Since this is an English-speaking site, here is the English version:
Benoît Battistelli, Director of the EPOrg, does not recognise trade unions. He has had email communication between trade unions and members blocked. © EPA
Opstelten: court ruling does not apply to European institution
According to the court, an organisation in Rijswijk breaches the rule of law. No, says the Minister, it has immunity.
By: Willem Feenstra 26 February 2015, 06:26
Ivo Opstelten, Security and Justice Minister. © ANP
Minister of Security and Justice Ivo Opstelten has binned the ruling of the Court of Appeal in The Hague. The ruling states that the European Patent Organisation (EPOrg) violates the fundamental principles of an open and democratic state under the rule of law. However, according to Opstelten, the European organisation enjoys immunity.
For years there has been a conflict at the EPOrg between management and a large portion of the employees. Director Benoît Battistelli is allegedly conducting a reign of terror and is averse to objection. He does not recognise trade unions and refuses to enter into discussion with them.
Measures
In order to counter organised opposition, the management of the organisation has blocked email communication between the unions and their members.
The task of the European Patent Organisation is to grant patent applicants a patent in a large number of European countries by means of a single application. The establishment in Rijswijk is, with 2,700 employees, the largest after Munich. In order to counter organised opposition, the management of the organisation has blocked email communication between the unions and their members. The right to strike has been restricted and employees expressing disagreement are threatened with disciplinary measures and dismissal. The trade unions are
also not welcome at the negotiation table.
Those measures are contrary to the European Convention on Human Rights (ECHR), so ruled the Court of Appeal in The Hague last week. ‘After all, this case concerns the rights of trade unions to take collective action and conduct collective negotiations, i.e. rights which belong to the fundamental principles of an open and democratic state under the rule of law.’
The Court ordered the Patent Office to reverse the disputed measures. In an internal statement, Battistelli has already indicated that he is not to going to adhere to this. According to him, the Patent Office, as an international organisation, is autonomous in the area of personnel policy. The internal rules were to form its own legal system in which a national court may not intervene.
Immunity
This means that these buildings may not be entered and enforcement action cannot be taken by Dutch authorities, or at any rate not without the consent of the President of the EPOrg.
Ivo Opstelten, Minister of Security and Justice
The Court of Appeal acknowledges that the Patent Office is an international organisation which can claim immunity but ‘this autonomy does not in any case stretch so far that the EPOrg could breach generally recognised fundamental rights in Europe without parties, such as the trade unions, being able to seek an effective remedy against such’.
Opstelten sees this differently. According to him, offices of the Patent Organisation in all contracting States enjoy immunity. This means that these buildings may not be entered and enforcement action cannot be taken by Dutch authorities, or at any rate not without the consent of the President of the EPOrg. He has ordered the court bailiff not to execute the enforcement orders in the judgement.
Immunity above human rights
Opstelten relies on an Act from the seventies. This must be applied dynamically, but he takes a very conservative view.
Cedric Ryngaert, Professor of International Law in Utrecht.
According to the Ministry of Foreign Affairs, the conventions to which the Netherlands is subject in respect of the EPOrg are clear: no enforcement measures can be taken against the Patent Organisation in the Netherlands. ‘With the order, the cabinet therefore opts not to take sides in the underlying dispute,’ according to a spokesperson. ‘This has been done to observe the obligations of the Netherlands under the conventions. We make no public statements on the underlying dispute. This does not affect the fact that we, and other Member States, continue to monitor the situation.’
According to experts, Opstelten’s position is at odds with the rule of law and he chooses immunity over human rights. ‘Legally he might have the law on his side, but in view of the constitutional system this appears very odd,’ according to constitutional law expert and Senator Hans Engels. ‘It is exceptional that these kinds of powers lie with a minister. And I
don’t mean this in a positive sense.’
Cedric Ryngaert, Professor of International Law in Utrecht, considers the order by Opstelten exceptional. ‘Basically he erodes the power of the Court. International organisations are going to increasingly put themselves above the law, which is already a problem now. Opstelten relies on an Act from the seventies, which must be applied dynamically. Instead he takes a very conservative view.’
About a week after the publication of this report Opstelten was found to be corrupt and he stepped down. Supporting criminals seems to be his ‘thing’; it’s not about justice.
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Posted in Europe, Patents at 3:19 am by Dr. Roy Schestowitz
Summary: EPO staff responds to the weak charm offensive from “Mr Battistelli’s boys”, stating that much work — including protests — remains to be done
LAST WEEK we started writing about the Dutch scandal that led Benoît Battistelli to concessions, in an effort to appease his critics who got his very job under serious threat. Florian Müller said that Battistelli would allow SUEPO to merely exist (based on just a statement) and also published some thoughts about the EPO Administrative Council meeting that we had mentioned for quite a while. Flier [PDF] and comments [PDF] from staff were also uploaded and we present these below.
Ortssektion München . Local Section Munich . Section locale de Munich
23.03.2015
su15028mp – 0.2.1/0.3.2/0.2.2
ACTIONS CONTINUE
DEMONSTRATION: WEDNESDAY 25 MARCH
ISAR BUILDING AT 12.30h
The EPO in the news
Last Saturday (21 March) the two most respected Dutch newspapers, NRC and Volkskrant, both ran highly critical two-page articles about the EPO. The NRC commented in a second article on the refusal of the EPO to admit the Dutch labour inspection after a suicide on the premises in The Hague. As usual, Mr Battistelli denied all the charges, insisted on the EPO’s immunity and blamed SUEPO. The articles can be found here:
NRC, “Ik ben geen zonnekoning”
http://www.nrc.nl/handelsblad/van/2015/maart/21/ik-ben-geen-zonnekoning-1477227
(printable version)1, (Google translation)
NRC, “De arbeidsinspectie komt er bij het Europees Octrooibureau niet in”,
http://www.nrc.nl/handelsblad/van/2015/maart/21/ruzie-de-arbeidsinspectie-komt-er-bij-heteuropee-1477187 (printable version)2, (Google translation)
De Volkskrant, “Baas van Europese octrooiorganisatie voert schrikbewind”
http://www.volkskrant.nl/economie/baas-van-europese-octrooiorganisatie-voertschrikbewind~a3918719/ (printable version)3, (Google translation)
SUEPO will provide official translations as soon as possible.
IP blogs have also become rather critical of Mr Battistelli’s attitude and behaviour, see e.g.:
http://kluwerpatentblog.com/2015/03/20/behavior-benoit-battistelli-is-bad-for-the-epos-reputation/
http://www.fosspatents.com/2015/03/epo-human-rights-issues-and-eu-patent.html
Finally, an English translation of judgment pronounced in a court case in Croatia earlier this
year has become available: http://techrights.org/2015/03/18/full-judgment-against-topic/
In this case Mr Topic (VP4) complained about defamation. The judge could not see any defamation in the – very serious – accusations against Mr Topic. These findings are highly embarrassing not only for Mr Topic but also for Mr Battistelli who has long denounced what he called a “defamation campaign against VP4”4. Mr Battistelli imposed (and the Council rubberstamped) a house ban on a Member of the Boards of Appeal suspected of involvement in the alleged “defamation campaign”5. Such charges now seem difficult to maintain.
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1 http://www.suepo.org/public/ex15136cp.pdf
2 http://www.suepo.org/public/ex15138cp.pdf
3 http://www.suepo.org/public/ex15139cp.pdf
4 see e.g. Mr Battistelli’s note to all staff of 26.02.2013:
5 link to Communiqué No. 64
And the politicians?
The leading politicians responsible for patent matters in the Member States remain mostly silent. But it is clear that Mr Battistelli’s open disdain for the Dutch judiciary and the Dutch
labour inspection has raised eye-brows in The Netherlands. We also hear that Mr Battistelli’s plan to move DG3 to Berlin did not go down well with the German government. It seems that the French government is starting to become seriously worried about possible damage to the reputation of France. And we doubt that the UK minister of Innovation (“the Baroness”) failed to notice the criticism about her apparent inactivity in the current crisis:
http://ipkitten.blogspot.de/2015/03/peace-for-our-time-or-another-wasted.html
http://ipkitten.blogspot.de/2015/02/epo-suepo-and-question-of-governance.html
Next reforms
The Administrative Council of the EPO will meet on Wednesday 25 and Thursday 26 March in Munich. On the agenda are a reform of DG3 (CA/16/15) and the next “health reform” (CA/14/15a). The proposed reform of DG3 is purportedly intended to improve the “perception of independence of the Boards of Appeal.” In reality the reform amounts to a hostile take-over of DG3 by the Administrative Council.
The “health reform” pretends to improve the reintegration of staff on long-term sick-leave or invalidity. In practice it will seriously weaken the position of sick staff vis à vis the Office by excluding the treating physician from the medical committee. The Office furthermore plans to unilaterally abolish the – thus far compulsory – invalidity insurance that staff may have been paying for 10, 20 or even 30 years. This amounts to a breach of contract.
Apart from being financially disadvantageous, the new regulations would oblige sick staff to remain at their place of employment during at least 10 years of full incapacity before the Office will consider recognizing their invalidity. During this time they will need to request permission from their employer for every absence. According to SUEPO this is an impermissible infringement of their privacy.
What are our claims?
Staff at the EPO calls on the Administrative Council:
- to reject the proposed health reform that foresees measures that have no equivalent in any of the EPO member states and violates fundamental rights, and
- to order the President of the EPO to enter into negotiation with the staff representation in order to come to an agreed solution.
SUEPO intends to organise a demonstration every month for as long as it takes to bring the EPO back on track.
SUEPO Munich
“I’m open. But we also have troublesome unions. A mix of French unions with German efficiency: a dangerous cocktail.”
Benoît Battistelli, NRC, “Ik ben geen zonnekoning”, 21 March 2015
Here are the comments:
Ortssektion München . Local Section Munich . Section locale de Munich
27.03.2015
su15029mp – 0.2.1/0.3.1/0.3.2
ADMINISTRATIVE COUNCIL
25 / 26 MARCH 2015 – A REPORT
&
NEXT ACTIONS
The Administrative Council: deaf & dumb?
Leading IP blogs have become rather critical of Mr Battistelli’s attitude and behaviour, as well as of the EPO Administrative Council’s passivity in this respect, see e.g.:
http://kluwerpatentblog.com/2015/03/20/behavior-benoit-battistelli-is-bad-for-the-epos-reputation/
http://www.fosspatents.com/2015/03/epo-human-rights-issues-and-eu-patent.html
http://ipkitten.blogspot.de/2015/03/a-kat-may-look-at-administrative.html
SUEPO1, EPO staff in general2 and the Members of the Boards of Appeal3 have also called upon the delegations not to rush through the fundamental reforms on the agenda, namely an outline of a reform of the Boards of Appeal (CA/16/15) and the second health reform (CA/14/15), without thorough reflection and proper consultation of the internal and external stake-holders. To no avail.
DG3 matters
Despite all the comments and objections (see above), the delegations unanimously approved the framework for the proposed reform of the Boards of Appeal. Another controversial decision concerned the suspension of a DG3 accused of “anonymous defamation of VP4” which was prolonged. And again there were no new appointments to DG3, meaning that DG3 will be forced to cope with an increasing workload through increased “efficiency” rather than increased capacity.
The health reform
The health reform also passed, albeit with 10 abstentions. The delegations discussed a 8 (!) hours in closed session (i.e. with the usual observers and without their “social partner”), probably mostly about the social dialog and the social reforms. The open discussion of the health reform was planned to take a mere 10 minutes. It seems for the Office difficult to signal more clearly to your “social partner” that you are not interested in his opinion. On the other hand: the open session finally took 50 minutes rather than 10. And the 8 hours in closed session are a clear sign that discussions are now taking place. That can almost be qualified as “progress”. The three major delegations (DE, FR, and UK) were amongst those who abstained. They were joined by CZ, IE, IT, MT, SE, SI and SK. This voting pattern shows that
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1 http://munich.suepo.org/archive/su15023ml.pdf
2 http://munich.suepo.org/archive/su15024mp.pdf
3 http://amba-epo.org/page/get/ca1615 and http://www.epostaff.org/archive/ex15146cp.pdf
traditional alliances in the Council have shifted. A majority of mostly small countries with a weak or negligible patent system are now outvoting countries with a much bigger population and a greater interest in a functional patent system. This does not bode well for the stability of the EPO and for its functioning as administrator for the Unitary Patent.
What next?
The Council’s approval of the reform of DG3 was not a final decision. The topic will be back on the agenda in June. We can only hope that by then the responsible politicians will have finally woken up and realised what is really going on: a hostile take-over of DG3 by the Administrative Council involving the creation of 8 new “jobs for the boys” – presumably Mr Battistelli’s boys.
For the health reform SUEPO will provide staff with the requests for management review that are now the necessary first step before filing an internal appeal. We will renew our contact with the Bayerische Laendesärztekammer in order to get answers to some pertinent questions about the extent to which medical doctors in Germany may fulfil the tasks the EPO intends to assign to them. Finally, SUEPO will provide legal support for its members who are denied invalidity or otherwise disadvantaged by the latest reform.
Union matters
Amazingly, after having once again brushed aside the concerns of staff and their representation and pushed through yet another ill-conceived reform, Mr Battistelli and Mr Kongstad now jointly announce4 “new initiatives to restore social peace” starting with an invitation to the trade unions (note the plural) to a kick-off meeting on 22 April 2015. Given the previous positions5 of Mr Kongstad, he and Mr Battistelli seem an unlikely pair to negotiate social peace. Whereas SUEPO wishes to echo Mr Battistelli’s statements that “our door is always open”, we also make it clear that we are not interested in merely improving “the perception of a social dialogue”.
Next actions
Should the discussions with Mr Battistelli and Mr Kongstad lead to unexpected progress (e.g. the withdrawal of the above health reform) then SUEPO would be more than delighted to postpone further actions. Until this happens, however, SUEPO intends to organise a demonstration every month for as long as it takes to bring the EPO back on track.
Details of the next demonstration will be published after the Easter holidays.
SUEPO Munich
“I am not talking about SUEPO at all: SUEPO has no standing in this Office. SUEPO has no role to play in this Office.”
Željko Topić (VP4), 19 March 2015, in a meeting with the Munich Staff Committee
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4 http://www.epo.org/news-issues/news/2015/20150326.html
5 http://ipkitten.blogspot.de/2014/12/battistelli-and-kongstad-respond-to-epo.html
“Details of the next demonstration will be published after the Easter holidays,” says the above, so surely Battistelli knows that it’s far from over. It shouldn’t be over until there is justice, which should include not just recognition of the staff’s rights but also removal of corrupt EPO officials. █
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