Posted in America, Patents at 1:55 am by Dr. Roy Schestowitz
One single decision that has changed everything
Summary: A look back at the legacy of Alice v CLS Bank and how it contributed to the demise of software patents in the United States, the birthplace of software patents
THE DAY of Alice I still remember very well. I was in Scotland on holiday at the time and it seemed like the beginning of something amazing, having spent over a decade fighting against software patents.
The EFF has just come out with an announcement titled “Happy Birthday Alice: Two Years Busting Bad Software Patents” (yes, they actually said software patents, for a change).
“This week marks the second anniversary of the Supreme Court’s landmark decision in Alice v. CLS Bank,” said the EFF. “In Alice, the court ruled that an abstract idea does not become eligible for a patent simply by being implemented on a generic computer. When the case was decided, we wrote that it would be a few years until we knew its true impact. Two years in, we can say that while Alice has not solved all problems with software patents, it has given productive companies a valuable tool for fighting back against patent trolls. And while it has been bad for the trolls, there’s little reason to think the Alice decision harmed real software companies.”
That last sentence is important in light of the quote that we shall give later (from those who profit from software patents without creating anything).
“Two years in, we can say that while Alice has not solved all problems with software patents, it has given productive companies a valuable tool for fighting back against patent trolls.”
–EFFThis decision has had truly profound effects and it has become the nightmare of patent lawyers who rely so heavily on abstract software ideas becoming patents (often just old ideas transformed into code). Robert R. Sachs, who isn’t particularly happy about what Alice has done, says that “well over 36,000 applications have been rejected based on Alice” in yesterday’s analysis. He provides a lot of data and charts, as his blog so often does (very informative blog by the way, with original research).
As expected from Mr. Sachs, he acknowledges this is good news but then pretends it somehow discourages investment (maybe in patent lawyers). It’s a somewhat questionable part (without evidence to back it), as one might expect from patent maximalists. The final paragraph states: “It is true that Alice has been successfully used to combat patent troll litigation based on poor quality patents—and that society benefits when these patents are invalidated. But the price of such benefits cannot be measured because we cannot know at what costs these outcomes came: we will never know what inventions did not get funded and developed because of Alice. That is why it is necessary for the courts and the USPTO to tread carefully.”
Actually, a lot of companies are destroyed by software patents (e.g. patent trolls that use them) before they even have the opportunity to attract investors. We have given examples of that over the years.
“It is true that Alice has been successfully used to combat patent troll litigation based on poor quality patents—and that society benefits when these patents are invalidated.”
–Robert R. SachsDennis Crouch and what seems like a patent lawyer, Michael S. Kwun, inevitably make fun of Alice [1, 2], which helped eliminate a lot of software patents. Also mind the a paid IAM ‘article’ that now speaks about FRAND, a Trojan horse for software patents even when/where they are not legal. The piece says: “Paragraph 63 of the Huawei decision states that the SEP user must express its willingness to conclude a licensing agreement on FRAND terms.”
FRAND does not mean free, the “F” stands for fair and is typically incompatible with Free software, where the “SE” in SEP means standard/s-essential, meaning that there is no way around some kind of patent tax/payment. Thankfully, after Alice, a lot of so-called FRAND ploys can be rendered irrelevant and obsolete, especially once challenged in a court of law. We already wrote many articles about FRAND in Europe and how Microsoft uses it to push for software patents in Europe and thus exclude GNU/Linux. █
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Posted in Europe, Patents at 1:16 am by Dr. Roy Schestowitz
The impact of the EPO’s ‘lunatic/irrational/unpredictable dictator’ strategy (or its notorious wrath plus SLAPP) likely
Summary: Free speech when it’s needed the most (EPO scandals) needs to be respected; or why IP Kat shoots itself in the foot and helps the EPO’s management by ‘sanitising’ comments
THE EPO’s management may seem scary. It has already banned IP Kat before. We spent a lot of time defending that site by writing about the ban and alerting journalists about it, creating backlash that might have played a role in reversal of the ban (we don’t know for sure, we can only hypothesise). The more people know about the EPO, the more likely justice and lawfulness are to be reached/restored.
We were rather reluctant to publish this post as we’re not (and never were) wishing to nitpick on the site which helps EPO employees. Yes, we have our occasional criticisms. For instance, it is hosted on a platform (E-mail and blog) where Google spying is a lot more likely than in other sites and yet most comments and a lot of material go there (because anyone can comment there anonymously).
Yesterday I left a comment at IP Kat and it vanished. This happens to other people too, but they don’t have a blog in which to write about it. Some tell me about this. I honestly don’t know what goes on in IP Kat‘s mind/s and what happens behind the scenes, but maybe someone is afraid to publish anything that might anger the EPO’s management after that notorious, short-lived ban. I am tempted to think that IP Kat was left with cold feet after that ban, but they had done this even beforehand, as people told me about that. If IP Kat is challenging or limiting the free speech of people wishing to comment, then it serves the EPO’s agenda to a lesser degree, by limiting the visibility of particular opinions or information. I already spoke to IP Kat about it several months ago (amicably, not in a confrontational fashion) and clearly not much has changed. I spoke about it before, urging them not to censor comments, but it is still happening.
I generally do not comment on blog posts because of impersonators (as of 7 years ago), but yesterday I decided I should make the exception because I was bothered to see an unfair comment about SUEPO’s head. I’ve been an activist for free speech and transparency — for quite a few years now as a matter of fact — and I believe in truth through rebuttal rather than outright removal/censorship. I left a comment in an effort to correct the record.
To IP Kat‘s credit, it did publish my first (of two) comment. This started with an anonymous comment that said, collectively: “We don’t really care about what happened to Mrs Hardon here” (where the word “we” seems to allude to staff or readers in general). To quote:
We don’t really care about what happened to Mrs Hardon here or what reason there was for nobbling the board, as Merpel says.
This is about obstruction of justice. This is about threatening a high court. These are pretty serious offenses anywhere.
The Office can’t afford to leave these offenses unanswered.
To nobble: “to cause or force (someone) to do something that you want by offering money, making threats, etc”. Try to do that to a court in your own country and see what happens.
One person quickly responded to the “We don’t really care about what happened to Mrs Hardon here” part:
Actually, we do – because if the reason she was dismissed is that she contacted the accused member of the BoA, and at the end the President is unable to show that he did anything wrong, that the accuses against her should fall too and she should be reinstated.
Another reason why we care is that the strategy to get rid of them seems to be the same.
We care about Else, actually we really do.
Then, having read that while cycling at the gym, I could not help myself but comment for the first time. I wrote: “The actions taken against Staff Reps, including some in The Hague right now (to further cement atmosphere of terror top-down), began with Hardon, so of course that matters. It is offensive to suggest otherwise.”
This comment did appear, but not my second comment, which spoke about the ‘quality’ of the so-called ‘evidence’. It was a polite comment and there is pretty much no justification for deleting it. I don’t have a local copy of that comment because I typed it on a cycling machine running Android, which basically means a public terminal with no detachable media.
I have been waiting to get the comment approved for more than half a day now, but it never showed up. In fact, later on another comment showed up (approved) but it was not mine. It said:
The potential “charge sheet” seems to be expanding – gradually but inexorably.
* deploying covert surveillance measures of questionable legality
* attempting to “nobble” a judicial body by means of alleged “threats”
* attempting to interfere with the course of justice by obstructing the hearing of witnesses
Anyone for an investigation ?
Perhaps if someone competent to carry it out can be found.
Watch this space but don’t hold your breath …
I asked Merpel for a copy of my comment (which they refuse to approve apparently), but have not heard back yet. My guess is, they later might claim that they have lost it or suddenly found it, in order to save face (that’s a common routine).
What is the bottom line? IP Kat censors comments. As a free speech advocate and enthusiast, I simply cannot support it. Over 35,000 comments have been posted in Techrights over the years (including harsh insults and threats against me) and I never deleted any of them, as a matter of principle. Quality control is not an excuse. Just remember that self censorship by fear is exactly what Team Battistelli wants; to do the job for him is undesirable. █
Update: It seems as though my comment was indeed deleted (it definitely made it through, see comments below). Strangely enough, I may need to wait before finding out who did this and why. Here is the correspondence about this:
Dear Roy
Thank you for your email.
If your comment was correctly posted, then it has been deleted because one of the IPKat moderators considered that it did not comply with our moderation policy:
http://ipkitten.blogspot.co.uk/p/want-to-complain.html
The IPKat comments moderation policy has been in place for many years, and unchanged in substance since long before Merpel started writing about the events at the EPO.
Blogger does not store such comments so I regret that we are unable to email the content to you.
Kind regards
With respect, I’m at a loss for words. That is very regrettable. We discussed this matter only a few months back. I thought I would get some assurances that people’s free expression would not be impeded based on (in my opinion) what was often arbitrary if not agenda-motivated. People are rightly passionate about the subject and they need a forum in which they can be heard. The subject of legal liability for comments on one’s article/s is still sort of ‘in the air’ in the US and I believe in the UK as well. So I doubt it’s about legal safety; maybe it’s fear of a ban (the EPO recently banned IP Kat for a day) or spoiling of one’s business/professional ties with the EPO (some who write for IP Kat do have such ties).
As I recall it, it was argued that not deletion but moderation without publication was at stake. Now I learn that unwanted comments are basically just being permanently deleted, without as much as an E-mail trail/record (like notification of a new comment with its contents). It’s like I just wrote my comment to myself.
Trying to reconstruct the comment from memory, as it was not particularly long, it went something like this (but shorter):
It is also worth mentioning that the evidence presented about the judge might not tell the whole story. The EPO’s management already got caught lying about the disciplinary committee (e.g. its recommendations regarding dismissal and other punishments for staff representatives), so the alleged access to E-mail by means of screenshots isn’t to be taken at face value. It is possible that these were acquired by means of parallel construction (look at the method [1]), whereby initial pointer/intelligence is obtained though other means (e.g. spy agencies or Google) and it then enables the management to set up surveillance like cameras or keyloggers at the ‘right place’, in order to help capture something and never mention where the initial pointer came from as it may have been illegally-obtained. This is common in the FBI and US DoJ, and it is the subject of very heated debate in the United States to this date. I should probably mention it’s widely documented that CRG, which works with the IU, employs/contracts former Statsi staff (from Desa in Germany) and CRG itself is close to the British government.
[1] https://en.wikipedia.org/wiki/Parallel_construction
It is sad that pointing out such a thing is unsayable. I would like to know who deleted my comment and why. If this was not you, then it’s possible that someone with very scarce knowledge of internal EPO affairs just took the initiative to purge comments, which I think is not responsible. How often does this happen to other people who have no facilities to complain (and must remain anonymous for their own protection)? I am an ardent proponent of free speech and any policy which deems the above unsuitable for publication speaks rather negatively about the platform or the site, in my humble opinion. Moreover, in this case, people’s justice and careers are at stake. To eliminate such views can, in some loose kind of way, be seen an obstructing justice.
With great respect and admiration for your good reporting, I would like to see my feedback taken seriously and for the importance of free speech to be honoured, no matter what risks this may entail. The EPO is an aggressive organisation (at the top) and being too soft makes us vulnerable to its despicable methods. ‘Sanitising’ what may be viewed as ‘strong’ views (I don’t believe the above is even strong) helps it maintain lawlessness at the EPO.
Kind regards,
Roy
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Posted in Europe, Patents at 4:50 am by Dr. Roy Schestowitz
Reign of terror by Team Battistelli
Summary: How the EPO’s Investigative Unit (IU) and Control Risks Group (CRG), which is connected to the Stasi through Desa, made the EPO virtually indistinguishable from East Germany (coat of arms/emblem above)
THE EPO‘s top management continues to rule by fear and the more afraid people are — or the more irrational and dangerous the management seems — the less likely people are to dissent, unless anonymously. We should note that some blogs from EPO workers vanished over the past two years (some did exist) and not much has remained for the expression of dissenting views, such as the view that patent quality significantly fell under Battistelli's watch. Moreover, if not more so, staff representatives are afraid. They are rightly afraid given the extreme sanctions against existing staff representatives in Munich and The Hague (using exaggerated and/or made-up allegations).
As one person put it: “Dialog… really?”
“It seems like the harsher the methods employed by Battistelli, the less likely he is to be able to engage in any meaningful social dialogue.”There is hardly even an illusion of social dialogue anymore. Battistelli does almost whatever he wishes. He does not even listen to the Administrative Council. He lives in his own fantasy world, where everything he pleases he believes will happen with or without backlash (he hardly worries about backlash as he insists he’s above the rules and repeatedly demonstrates that). Who takes the toll? The EPO’s reputation. Does Battistelli care? He doesn’t seem to mind, he’s already at retirement level/age.
“Simultaneously to the demonstration,” one person recently wrote, “the General Consultative Committee, GCC, took place in the ISAR building in presence of the top management.”
Was there any real dialogue there? Not really, “[h]aving learnt from a painful experience made by a former member of the IAC [Internal Appeals Committee], Aurélien Pétlaud, who was downgraded in 2015 in exactly this situation, the elected Staff representatives which had the obligation to participate.”
“Seeing a large bunch of disgruntled EPO workers (who seem to be the overwhelming majority by now), Battistelli has chosen the use of force rather than consent.”It seems like the harsher the methods employed by Battistelli, the less likely he is to be able to engage in any meaningful social dialogue. One begins to legitimately wonder if he’s actually interested in such a dialogue or only wants to tell the media about such fiction.
“On the Agenda [there were] precisely two reform proposals on Investigation procedures and Disciplinary Procedures,” we learned about aforementioned proposals, “giving even broader powers to the investigation unit and the president: knowing that these are already on the agenda of the coming AC (Disciplinary: CA/53/16 & CA/53/16 add1 – Investigations… sorry the official term is “fact finding”: CA/52/16 and add2), the debate was nothing more than the usual rhetorical exercise, that some may qualify a yet another of these sad “Battistelli-movies”.”
“Is this the future of Eponia? Another East Germany?”So even when there’s an attempt at dialogue it seems to involve yet more escalations in the attacks on staff, including staff representatives. This has got to be some kind of a farcical exercise. That’s like sitting down with one’s enemy for “peace talks” while deciding which targets are “ideal” for “mutual” nuclear strike/impact (as in power plants, water supply and so on).
From the same text: “It was [supposedly] the opportunity for the Staff representatives to state their utter disappointment with the last president disciplinary decisions (see as an illustration one intervention made in the GCC by an elected CSC representative) and Staff broad disagreement with the present management policy.”
This text, which reached us not by intention, serves to demonstrate which kind of atmosphere prevails not only at the appeal boards but also in panels or discussions pertaining to staff rights. It’s ludicrous and moreover it serves to show that Battistelli’s mask may not have fallen off yet. He wishes to get even nastier and he wishes to authorise even more authoritarian powers (maybe some of which were exercised beforehand, even before these were ‘legalised’ to retroactively justify/excuse them).
“Under Battistelli’s regime, the unthinkable becomes possible (for him, Battistelli) and ordinary things become verboten (for everyone) if Battistelli decides so.”Seeing a large bunch of disgruntled EPO workers (who seem to be the overwhelming majority by now), Battistelli has chosen the use of force rather than consent. When BlueCoat and the IU (or CRG) can’t identify disgruntled EPO workers one should wonder if they also reach out to their friends in spy agencies (CRG is connected to Desa, i.e. former Stasi staff, and maybe GCHQ also, as we noted last year). Is this the future of Eponia? Another East Germany?
As one insider recently told us about Battistelli, “do you think he’s not universally despised here? Even directors despair at the methods… [but Battistelli] has the money to spread around [...] so many people eating from his palm [...] there’s a good article in the Sueddeutsche about the slide downwards [...] that people lose job security and more and more jobs are precarious, on the border to the survival level [...] it’s also what´s being promoted at the EPO, with the limited time contracts” (which pressures to grant more patents rather than do one’s job and also reject applications).
Regarding Team Battistelli we got told that “Topic depends on Battistelli so he’ll do whatever Battistelli asks of him [...] hopefully he will get sentenced in Croatia, then things would become clearer, but justice in Croatia doesn’t move that fast [...] best hope is Battistelli himself who will certainly provide some more ammunition [...] he has no idea what a manager should be like (never heard words like “inspirational”, “motivating”, etc.) [...] he has no shame (who else would’ve brought nine French friends and distributed them in high positions?)”
“It’s enough to be flagged or accused by Battistelli to lose one’s job and potentially be barred from taking employment elsewhere (for several years).”Under Battistelli’s regime, the unthinkable becomes possible (for him, Battistelli) and ordinary things become verboten (for everyone) if Battistelli decides so. The notion of justice, in a system which is intended to provide justice (on patents), is totally absurd. “Institutionalised injustice,” as anonymous writers recently referred to it, is now the norm under Battistelli and here are some figures to support that: “CA/20/16 shows that things have since gotten worse. The documents show that the success rate of the “requests for review” has further gone down from about 5% in 2014 to about 4% in 2015, in terms of number of cases (page 55/116; table under point 285). The success rate in the Internal Appeals Committee (IAC) was about 9% in 2014. This was already a very bad year. Previously the success rate was between 25 and 35%. In 2014 the IAC did not meet after summer, until the members appointed by the Staff Committee resigned in October 2014. At the end of the year the IAC then whipped out a large number of opinions in 3-member composition, without staff representatives. From the overall success rate for the year it seems that the vast majority, if not all, of these opinions were negative for staff. As a next step the nominees appointed by the Staff Committee were replaced by “volunteers” recruited by Mr. Battistelli. Subsequently the success rate in the IAC went down to 4%, again in terms on the number of cases (page 56/116; first table under point 287). In terms of number of appellants, the figures are much worse still. According to the next table under point 287, of the final decisions after the IAC taken in 2014 still about 15% were positive for the appellant. The higher success rate compared to the IAC recommendations of the same year presumably comes from IAC recommendations issued by the IAC in 2013, many more of which were positive. In 2015 the success rate final decisions after IAC also dropped dramatically. Of the 243 cases (from a total of 2.420 appellants), Mr. Battistelli only allowed two, one of which only in part, giving an overall success rate of 0.8%. These data show that the current administration tries to win conflicts with its employees rather than to try and solve them. Under the circumstances it should not come as a surprise that the Board “observes” a growing number of ILOAT files (page 59/16). But for the Auditors all of this seems to be no reason for concern. The Board simply mentions the figures, without much comment and without giving any recommendations for improvement.”
Put succinctly and in very simple terms, there seems to be no point appealing anything inside the EPO, and outside of it, notably at ILO, justice is far too slow and even then it’s somewhat dubious (based on statistics on cases). This means that Battistelli can do to staff pretty much anything he pleases and there’s no veto power, no ‘safety net’ of appeals. So much for ‘job security’ at the EPO. It’s enough to be flagged or accused by Battistelli to lose one’s job and potentially be barred from taking employment elsewhere (for several years). Talk about reign by terror…
“The future shape of IP in Europe,” one person said, or “the balance between legal security and the need for costly litigation, is being determined by one thing only- the greed of the AC and the national patent offices.”
Another person wrote the other day, vaguely alluding perhaps to the Enlarged Board of Appeal:
A truly historic moment for the EPO.
At last somebody within the organisation* has stood up for the rule of law and takes a principled stand against the abuses of the EPO management.
(* And I am not referring here to the Administrative Council!)
Many people have been waiting such a long time for a hopeful signal like this and are truly grateful that it has finally come.
Sad to think that such hideous abuses of power are tolerated for so long at the highest political levels throughout Europe. But those responsible will wash their hands and pretend that “we were never informed”, “we didn’t know” etc. while they dance on merrily to the tune of “Put another nickel in the nickelodeon”.
Shame on them.
The “idea that the investigation unit would be ordered to investigate a BoA decision is objectively too ridiculous,” one person wrote. Here is the comment in full:
It would be unfortunate if that turns out to be the reasoning of the EBA. It would convince only those who need no convincing, which is just useless.
A mere “unlawful” by the president who does not get to decide anyway (Art. 23(3)) should have been easy to dismiss.
The threat had better be real and serious. Probably it was, but at the moment it is impossible to tell. The idea that the investigation unit would be ordered to investigate a BoA decision is objectively too ridiculous to take serious unless the letter actually makes such threat.
“Who would really be surprised if one or more members of the EBoA would be marched out of the EPO,” one person said regarding Battistelli’s EPO. It would not be surprising at all, hence the insistence that the suspended (on ‘house ban’) judge gets a fair assessment, not politically-charged accusations and dismissal:
the two of recent of our feline friend concerning EPONIA, start on the sidebar with
“Extraordinary news has just reached Merpel.”
(this concerns the EBoA OP that was torpedoed )
the other reads “Merpel thought that nothing at the European Patent Office could surprise her any more. How wrong she was. ” (post employmen restrictions)
Who would really be suprised if one or more members of the EBoA would be marched out of the EPO because somebody ruled that a house ban was the right thing for these Judges , who are not really Judges ?
Sir Robin Jacob is then recalled, for his epic intervention on this matter:
Actually, a lot of people at the time were surprised.
Remember Sir Robin Jacob’s Letter?
And the one of the Six National Judges?
And the one from Dr Tilman Müller-Stoy? – with the caption from Merpel: “who’s asking the DE delegation to the AC to set the EPO management straight” (sorry, Dr. Müller-Stoy: it really did not work …).
After Battistelli informed the AC – and the public – that the suspended member of the BoA was (allegedly) an armed nazi, I can understand their reluctance to continue to defend him … but now? After the AC failed for 3 TIMES to have him dismissed, would it not be the time to SAY SOMETHING?
Actually, the silence of the IP world is defeaning.
Only Merpel is brave enough to continue to cover, comment on and criticize what is going on at the EPO.
Where are you Sir Robin?
In response to the above:
I would not expect too much from Sir Robin and his friends.
They may be in a quandry.
Rumour around the EPO has it that a retired British judge chaired a disciplinary body appointed by the Admin Council which rubber-stamped the work of the IU.
Seems like he never heard of Article 23 EPC.
A bit embarrassing for all concerned.
It cannot be pleasant to wake up and realise that you have been a Presidential patsy.
Might help to explain the current silence.
The following person believes that the EPO is like “East Germany” now:
When people who dare criticize and resist a dictatorship are caught, they are never good family’s fathers.
To avoid that normal people could identify themselfes with the person expressing a legitimate critic or an act of resistance, they are publicly presented as monsters, perverts, with the convenient discovery in their offices of incriminating material.
Defending someone like this becomes embarassing – Sir Robin is not heard anymore.
But the person has not acted alone! – we are told. Further conspirators are discovered, guilty by association – first the Judge, then the Union Leaders.
Thus, one by one, the pillars of a civil society are silenced – in secret trials in which the State’ s security may be conveniently invoked to avoid embarassing witnesses to appear, or with reformes to enhance the “perception” of independence, presented with grand fanfare.
And all this is appening – of all places – in Germany, the representative of which in the Administrative Council belongs to the Minister of – wait for it – “Justice”.
I’m surprised that nobody noticed this – but then, not everybody lived in the former East Germany.
“With the EPO,” one person says, “Maas has a politician’s dream: a half-plausible excuse to say “not my department!”.” Here is the full comment:
Justice minister Heiko Maas (SPD) ain’t really the sharpest knife in the drawer. Look at his performance in the NSA and Netzpolitik scandals…
With the EPO, Maas has a politician’s dream: a half-plausible excuse to say “not my department!”.
But it could still be worse… A lot worse… Three words: Thomas. de. Maizière.
Also, “forbidding the three members of the Investigation Unit to appear,” one person said, “is the real scandal here!” Battistelli is probably just trying to cover his own behind, having (quite likely) broken his own rules again:
Everybody here is focusing on a real or perceived threat in the letter of the President – the details of which we will probably never know.
In my opinion, forbidding the three members of the Investigation Unit to appear at the hearings, as requested by the EBoA, is the real scandal here!
The following comment explains that “Battistelli obstructs justice.”
So what happens next?
Whether it was by failure of allowing witnesses to be heard or by a threat letter to the enlarged board, one thing is clear: Battistelli obstructs justice.
Another thing is clear: in their last meeting, the administrative council gave clear instructions that “justice must be seen to be done”. In addition to “restore social peace”, “start talks with the unions”, etc…
Normally, in cases as clear and detrimental to the function of the EPO as this one, the expected answer would be: lift Battistelli immunity and find another President at interim to sort out the mess.
So I am asking the question again: what happens next?
Perhaps the best comment so far points out that “the Investigation Unit might have violated the private e-mail accounts of the accused member” (probably a lot more than once). As we noted here before, the EPO’s Investigative Unit claims to have read private E-mails of bloggers like Florian Müller (one might nonchalantly wonder if Google had something to do with it because Gmail was used). When HP got caught doing such things the ramifications were enormous, but in Eponia? No justice. Here is the comment in full:
Quite amazingly, the President himself has given an indication of why the procedure against the accused member of the boards might have had to be stopped at all costs.
In his final decision against Elizabeth Hardon, the recently fired chairwoman of SUEPO, as published here: http://techrights.org/2016/01/16/battistelli-has-isssues-with-hardon/ the President wrote:
“As regards the defendant’s request concerning the DPO authorisation, the Office’s explained both the technical and the legal aspects. It has explained the exact circumstances under which the investigation took place. For the avoidance of any doubt, the Office did not intercept your correspondence to Mr XX, nor access your private email account. Rather, it collected evidence in the context of an investigation against unknown persons within the premises of the Office and more specifically at one of the Office’s public PC kiosks. Screen shots of email correspondence and activities of Mr XX were obtained in that context. These included screen shots of two-way correspondence between Mr XX and you. It was in that way that your involvement came to light. It was demonstrated to the Committee that the Office had not relied upon intercepting your private email at all, and you were mistaken to think so. These reasons and details were considered carefully by the Disciplinary Committee who fully understood and accepted them. They do not require further elaboration“ see § II (iv) of the President´s final decision.
The President´s final decision thus evokes a suspicion that the Investigation Unit
might have violated the private e-mail accounts of the accused member of the boards and of his alleged accomplice, Elizabeth Hardon. The Disciplinary Committee in Hardon’s case, chaired by the very Mr. McGinley, see § II (i) of the decision, who a few days ago unexpectedly announced his early resignation http://techrights.org/2016/06/15/ciaran-mcginley-is-leaving-epo/ was apparently satisfied by the explanations of the Investigation Unit that they did not gain access to any private e-mail accounts.
It cannot be excluded that a public hearing by the EBA of several members of the Investigation Unit in the present case, which obviously relies upon the same investigations, could on the contrary have revealed that the Office in addition to its admitted spying on publicly available computers also hacked the private e-mail accounts of its staff, with disastrous consequences.
One might begin to wonder if last Tuesday’s hearing helped motivate Ciaran McGinley to take early 'retirement'. If he was ever implicated in obstruction of justice or the aforementioned illegal spying, what would be the impact? █
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Posted in Europe, Patents at 3:47 am by Dr. Roy Schestowitz
“When asked by Ars, the EPO’s spokesperson mentioned the imminent arrival of the unitary patent system as an important reason for revising the EPO’s internal rules…”
–Dr. Glyn Moody
Summary: Dr. Ingve Björn Stjerna’s latest paper explains that the UPC “expert teams” are in fact not experts but people who are using the UPC as a Trojan horse by which to promote their business interests and corporate objectives
THE UPC is not “unitary”, it is not “EU”, and it is not “Community” (as it used to be labeled). It is a patent lawyers’ wishlist and they are getting close to making this wishlist European law and practice. This is extremely dangerous and it’s rather clear who this is going to serve. Battistelli’s EPO, which is in the pockets of large corporations, obviously supports the UPC. Battistelli himself has supported the UPC (in previous incarnations thereof) for well over half a decade. He travels to the UK amid referendum to promote his agenda. This ENA graduate knows the drill and it’s certainly not serving the public (as those sufficiently familiar with ENA politicians probably know all too well by now).
“Battistelli himself has supported the UPC (in previous incarnations thereof) for well over half a decade.”Here in the UK we have what can be viewed somewhat like “moles”, or people whose role in the British economy is rather parasitic. They want more for themselves at the expense of those who produce things, such as software. They want software patents and they want the UPC. As we noted here before, Bristows are some of the biggest UPC propagandists out there (also for software patents) and Brian Cordery who is affiliated with Bristows now says that the “reshaping of UK patent litigation by the Judges coincided with the decision by many multinational companies in all sectors to coordinate their European patent litigation more and more – to devise, stress-test and implement strategies in key cases. Many UK law firms were chosen to assist their clients in this process which enabled these firms to gain a wider perspective and provide more joined-up advice to their clients.”
How revealing. He then admits that there is a “microcosm of patent litigation” in the mix. To quote: “It seems to the author that in the microcosm of patent litigation, sharing views and learning from each other has led to improved practices across the continent. Now we are of course on the brink of the most exciting development in European patent litigation for nearly half a century. The Unified Patent Court represents an enormous challenge – and an enormous opportunity – to all UK patent litigators. If the UK votes to leave the EU next week, the future of the UPC is uncertain although the future of the UK’s part in the UPC will be clear enough. What would this mean for UK patent litigation? Maybe not so much in the short to medium term – it is not unreasonable to suppose that the English Patents Court might become akin to its counterparts in Canada or Australia – still a venue for patent cases of high value and/or strategic importance. But how much more exciting would it be to shape the UPC which surely has the potential to become the world’s most attractive forum for patent litigation by the end of the next decade?”
“The problem is, the people who engineered the UPC, as the above admits, are people who stand to profit from it.”So UPC “has the potential to become the world’s most attractive forum for patent litigation,” right? Don’t we all love litigation as much as patent lawyers do?
The problem is, the people who engineered the UPC, as the above admits, are people who stand to profit from it. Members of the general public were excluded, as noted here many times before, and Dr. Ingve Björn Stjerna, a longtime opponent of the UPC and its predecessors, has a new paper about it, having just published a whole book on the subject. We have already written a great deal about the UPC being all about rigged panels (excluding particular points of view), which effectively makes it a coup in broad daylight. In the words of Ingve Björn Stjerna: “There have probably rarely been legislative proceedings of such technocratic nature as those on the European “patent package”. Patent practitioners, especially judges and members of the legal profession, have been involved extensively in order to use their experience for the new system. An important role in this is played by the Preparatory Committee of the Unified Patent Court which is entitled to appoint so-called “expert teams” for its support and advice. Conflicts of interest do not seem to play a role when it comes to filling the positions of these teams. Appointments from the legal profession, the members of which often have significant financial interests in the realisation of the “patent package”, have repeatedly been made in favor of the same individuals from only a few law firms. Some of these persons use their membership for promoting the advocacy services of their law firms. These “expert teams” and their composition will afterwards be given a closer look.”
Here is the direct link to the PDF in English (there is also one in German). “The “expert teams” of the Preparatory Committee,” he explains, is an “[a]rticle on the composition of the “expert teams” of the Preparatory Committee for the Unified Patent Court and on the participation of members from the legal profession “in their personal capacity” (16/06/2016)”
“Perhaps it’s time to start a broad, Europe-wide information campaign about the UPC.”Well, it sure looks like the UPC might never become a reality at all. Even the EPO quit pretending that this is inevitable. Are politicians even aware of what it is they are ratifying and where it came from? Do they care? Perhaps it’s time to start a broad, Europe-wide information campaign about the UPC. We recently heard that FFII might be interested in pursuing this. █
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Posted in Europe, Patents at 3:09 am by Dr. Roy Schestowitz
Another fine example of why we sometimes call it the European Private Office [1, 2]
Summary: Extravagant and cushy contracts to the tune of tens of millions of Euros are being issued without public scrutiny and without opportunities to competition (few corporations easily score cushy EPO contracts while illusion of tendering persists — for small jobs only)
THE European Patent Office ought to be widely viewed as Europe’s most scandalous ‘public’ (corporate) institution. As we noted here before, the EPO‘s French CIO from “Informatique CDC” was wasting heaps of money on “IT” (not far from a hundred million Euros). Combine this kind of budget with lack of oversight and you might expect something like the Bygmalion affair, with massive contracts given to French companies (adjacent to the CIO’s previous employer) such as Infotel. Alarms were already raised about this, judging by the following explanation based on which we produced the chart above:
One thing that is noteworthy is that there are more direct placements (79 in total) than there are awards after competitive bids (42 in total) and that the average value of the direct placements are higher than those of the competitive bids. The big winners are IT consultants, among which InfotelConseil S.A. (Neuilly, near Paris), SaM Holding GmbH (Gilching, near Starnberg) and Everis Spain S.L. (in Brussels). For Infotel the total value of the listed contracts is slightly over 14 million Euro. The total value of the 5 awards after competitive bids is about 1.8 million, i.e. almost 340 thousand Euro per contract. The total value of the 11 (!) direct placements is almost 12.5 million, with an average value of about 1.1 million per contract. We see a similar pattern with Everis Spain, with a total value of the listed contracts of over 15 million Euro. The 8 contracts after competitive bids have an average value of 574 thousand Euros. The 14 (!) direct placements are worth almost 11 million Euros, i.e. 770 million Euro / contract. SaM Holding won 2 competitive bids leading to contracts with a value of 1.7 million, i.e. 850 thousand per contract. Its 9 direct placements (among which 3 of over 2 million) amounted to 13.4 million Euro, i.e. an average of almost 1.5 million Euro per contract.
Direct placements by the EPO are highly problematic because of their lack of transparency and because these contracts are not open to any effective form of control or challenge. Already, potential competitors cannot challenge such placement for the simple reason that they are not informed of their existence. They also do not know the rules that apply. The only possible controls are from within the Organisation, i.e. by the Board of Auditors or by the staff representation. The EPO’s Board of Auditors, appointed by the EPO’s Administrative Council, is notoriously inefficient in finding irregularities. In the rare cases where it does find something wrong, the Office mostly ignores their comments. Given the lack of alternative controls, the staff committee challenged a direct placement (later also flagged as irregular by the Auditors! See page 159 of CA/20/09) at ILOAT. In its Judgment 3343 the Tribunal held the complaint irreceivable because the alleged violation of the rules did not have “a direct and immediate bearing on the employment status or rights of employees.” This leaves the EPO’s about multi-million Euros procurement budget essentially without any control.
Secret contracts to FTI Consulting — contracts which were recently expanded — ought to be investigated alongside Battistelli’s expensive information war [1, 2, 3, 4] (more contracts, even for surveillance and censorship). There’s also an urgent need to look into Battistelli's buying of the media. With so much to hide inside Europe’s second-largest public institution, a lot of ‘military-grade’ propaganda may be needed, not just managers with military background (there are quite a few of them now). EPO management is ‘managing’ its budget pretty much like the Pentagon allocates money. █
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