12.09.15
Posted in America, Europe, Patents at 9:48 pm by Dr. Roy Schestowitz
Software development environments neither need nor want patents
Summary: An interlude regarding the subject of software patents in Europe and the United States
THE main subject of this site has always been software patents (we are not anti-patents in general). It’s why the site came into existence in the first place. There is a war going on in the software domain and it is fought between protectionists and programmers. Alice denialists typically fall under the former group and Free/Open Source software developers are just a subset of the latter (it includes proprietary software programmers too).
Alice denialists, who are mostly patent lawyers, only ever choose to comment (cherry-picking) about Alice when it’s some Microsoft-connected patent aggressor like Finjan managing to convince a court to uphold a software patent, as we recently noted. This new article by Monte Cooper and Cam Phan from Orrick says: “This goes to show that despite the significant shift that has occurred since the Alice decision, all hope is not lost for plaintiffs asserting patents in the software space.”
“There is a war going on in the software domain and it is fought between protectionists and programmers.”Well, Alice denialists wouldn’t want to admit that SCOTUS and the USPTO don’t quite tolerate software patents like they used to. Even the Court of Appeals for the Federal Circuit (CAFC), which is said to have brought software patents to this world, is finding itself rejecting a lot of software patents these days, on grounds of abstractness.
Despite the EPO‘s troubling leanings towards software patents in Europe (because it helps management improve so-called EPO ‘productivity’ figures, measured in misguided terms or yardsticks like number of patents granted), it’s still not easy to get patents on software in Europe, either.
The mainstream media is increasingly covering various EPO scandals these days (there are many scandals, not one). It happens on a daily basis right now. See Stefan Krempl’s new article in German (if SUEPO doesn’t produce a translation, maybe one of our readers wants to).
The European Commission and second-biggest EU establishment — the EPO — apparently have something in common. The EPO is clearly dysfunctional right now and “at the EPO,” according to this new article, “oppositions can take 12 years” (if not longer).
There are many aspects to the EPO situation and our Wiki page breaks these down into various loose categories. Some readers have asked us for an overview of everything. This, in preparation for the protest on Thursday, is something we intend to do next. █
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12.08.15
Posted in Deception, Europe, Marketing, Patents at 11:40 pm by Dr. Roy Schestowitz
Tired of exploiting refugees and cancer for public relations (PR) purposes?
Summary: The European Patent Office is now pulling the greenwashing card in an effort to improve its image
WIKIPEDIA defines greenwashing as “a form of spin in which green PR or green marketing is deceptively used to promote the perception that an organization’s products, aims or policies are environmentally friendly.”
“Media “presence” objectives spring to mind; the EPO is now interjecting itself into media after this sort of publicity stunt (usually coordinated with some partners such as IAM or UNEP in this latest case).”Well, the EPO is now doing exactly that (warning: this is an epo.org link) and we can’t help but wonder if this is part of the media presence campaign, or seeding of positive publicity. Around the same time that the EPO was negotiating with and working towards ~$1,000,000 in budget to fracking AstroTurfers from FTI Consulting the EPO also came up with the headline “EPO to donate EUR 100 000 to help refugees in Munich” (small money compared to what was spent manipulating the media).
The EPO’s latest charm offensive (of the greenwashing kind) is already in rather obscure British media and Chinese state media. Media “presence” objectives spring to mind; the EPO is now interjecting itself into media after this sort of publicity stunt (usually coordinated with some partners such as IAM or UNEP in this latest case).
“As many can probably agree, the cute and cuddly narrative which the EPO’s management is trying to prop up is enough to make some people vomit.”Speaking of opportunistic charm offensives, see this new article titled “EPO intends to grant patent to its cancer immune primer INTUVAX”. This will become very relavant when we cover future scandals. We are going show how the EPO uses cancer to advance its political agenda while also pretending to fight cancer. In reality, the EPO uses cancer to crush ‘unwanted’ staff.
As many can probably agree, the cute and cuddly narrative which the EPO’s management is trying to prop up is enough to make some people vomit. █
“When good men die their goodness does not perish, but lives though they are gone. As for the bad, all that was theirs dies and is buried with them.”
–Euripides
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Posted in Europe, Patents at 11:11 pm by Dr. Roy Schestowitz
The “copy-paste” department of the European Patent Office (EPO) evokes the Yuppie-Nuremberg defense?
Summary: Why the EPO’s praetorian guard seems incapable of forming solid arguments, let alone form an independent, unbiased evaluation of the situation (guess who pays the bill)
THE EPO‘s management must have realised by now that outside the area of patent examination (brilliant people!) it simply lacks brainpower. Any administration of such precious manpower must be respectful towards such an invaluable asset. Team Battistelli (a tightly-connected cabal), however, does everything wrong. The schoolyard bully behaviour is renowned as a hallmark of insecurity due to lack of mental capacity.
The EPO is now trying to hire ‘forensics’-centric experts (more technical people), based on these recent job openings. Seeing the quality of EPO ‘investigations’, we can’t say we’re surprised.
“The schoolyard bully behaviour is renowned as a hallmark of insecurity due to lack of mental capacity.”Let’s start with some funny nitpicking. if the EPO didn’t just BLOCK the whole of Techrights (site-wide), its so-called ‘investigators’ would possibly have typed the domain name right. They write techrights.com instead of techrights.org. Maybe they don’t even know the difference and can’t grasp the concept of domain suffix. Remember that the EPO does not employ technical people in the I.U. (we wrote about its members before [1, 2, 3, 4, 5, 6, 7]). Control Risks staff too have come from a background of war and conflict*, not technology. When the EPO hires FTI Consulting and Control Risks it reveals its vested interests. It is basically hiring notorious union busters (in secret), not investigators. For the former, the EPO alleges that it is merely misunderstood by the public and for the latter it alleges it is doing “investigations”. Well, judging by the history of Control Risks, it’s actually about resistance-crushing and union-busting, perhaps cleverly disguised as “intelligence”.
Whoever wrote the terrible “J’accuse” against Hardon (it’s said to be the I.U. and Control Risks, who depend for their salary on appeasing Team Battistelli) is clearly is more of a wannabe prosecutor, not an investigator. For hire in the case of Control Risks…
“They evidently send what seems like templates, with slight variations.”Only one who is clueless about matters of law would accept allegations brought forth by people who claim to be “investigators” (totally not independent) who are paid by the accuser…
In the “J’accuse” of Team Battistelli, these well-paid spinners try to paint EPO managers as saving staff from suicides; by means of malicious insinuations, the so-called ‘investigators’ blame it on SUEPO.
Let’s leave aside the self-serving spin for a moment.
“They refer to a lady as “Mister” because they forgot to properly edit their templates.”Whoever writes the laughable accusations for the EPO is clearly not technical. Bush says he uses “the Google” and the EPO’s so-called ‘investigators’ say “this letter was also published on internet on the websites of Fosspatents” (that’s Florian Müller).
Yes, they said “on internet” (never mind lack of capitalisation). They must have meant “on the Internet”.
But wait, it gets worse. They evidently send what seems like templates, with slight variations. Consider the following two examples (two different letters on the left and on the right):
Here are a third and fourth letters:
Look more closely at this second pair They refer to a lady as “Mister” because they forgot to properly edit their templates.
I too received legal letters with the wrong name in them, suggesting that a template was used and a similar threat was probably sent to another blogger/reporter (if not many more). But hey, maybe they’re just lazy, as they’re clearly not underfunded.
Watch the so-called ‘investigator’ (or accuser) using whois as a sort ‘evidence’ appended to letters. Nice job, 'Sherlock'!
Perhaps it’s not the case that the EPO’s management is malicious. Maybe it’s just not competent enough (mentally) to realise that what it’s doing will backfire pretty badly. They don’t seem to understand how the Streisand Effect works. █
_________
* We sometimes wonder if the EPO can (mis)use its contract with the UK-based Control Risks for parallel construction, e.g. through mates in GCHQ. If this kind of lawlessness prevails (as it certainly does in Five Eyes whenever it serves those in power), a so-called ‘anti-terrorism’ apparatus can provide powerful people with parallel construction-derived pointers. In Five Eyes nations like the UK, journalists (not paid stenographers) are not safe, not even in their own homes (not anymore).
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Posted in Europe, Patents at 9:28 pm by Dr. Roy Schestowitz
When passivity implies cooperation if not complicity…
Photo credit: DKPTO at Flickr
Summary: A new document serves to show that the body capable of firing people inside of Team Battistelli failed to prevent gross and unprecedented union-busting actions
Jesper Kongstad, the Chairman of the Administrative Council (AC), was apparently contacted days before the suspension of staff representatives, based on new information which was leaked to us (definitely not by any of the persons involved). According to this, days (almost one week) before the suspension, Kongstad had the capacity to intervene, but he did not.
Here is a letter send to Kongstad on the 11th of November, 2015.
To:
Jesper Kongstad
Chairman of the Administrative Council
[E-mail redacted]
Further investigations of staff representatives and/or union executives
Dear Mr Kongstad,
We take note of your intention to have “the staff voice being heard in the social study”. However, we remind you that so far the exercise of “renewed social dialogue” has been severely compromised by investigations launched by the Administration, in particular of late by PD4.3 (Human Resources), against staff representatives and union officials.
We deplore that further, new threats have been issued very recently by PD4.3 targeting staff representatives and union officials (see annexes 1-4). Although the allegations are once again regarded as unfounded (e.g. see reply in annex 5-6), we note that these threats appear to be synchronized with the announcement from the AC (in their October meeting) that they intend to reopen discussions with the staff representation including the unions. In our opinion, this clearly demonstrates that Mr. Battistelli has a different agenda and is sabotaging with intent any kind of possible rapprochement and progress towards a renewed social dialogue. Consequently, our position on further talks – as expressed in our letter to you on 9 June 2015 (su15228cl) – remains the same.
We therefore request you and the Council once more to order the Office to cease and desist from such intimidating actions, and this to be a prerequisite before further talks on union recognition or other matters pertaining to the current social conflict can take place.
As long as staff representatives and/or union officials are subjected to such baseless, obscure and fabricated attacks we consider that the necessary framework to conduct frank and meaningful negotiations is not provided.
Yours sincerely,
[Redacted]
We now know that the EPO promotes aggressive staff and stomps on the rule of law in an effort to crush these staff representatives. Can Kongstad not see what’s going on?
“There’s a reason why the EPO wants to keep its so-called ‘investigations’ secret. They’re not really investigations but personal attacks or union-busting actions.”To quote this one new comment, the EPO’s “scapegoats are questioned by the secret police without giving them information [...] akin to a novel by Kafka.” Another person takes note (in an earlier comment) of “Propaganda organised via the spoiling of 880.000 Eur of applicant’s money…” (alluding to this leak)
The discussion in IP Kat is in itself quite revealing. People inside and outside the organisation expect a collapse and the above actions, which the AC just let be, contribute to that collapse. Does Kongstad want his employer (further up above EPO) to collapse? It’s not low-level staff that sabotages the EPO, it’s the high-level management.
As shown here the other day, the EPO now practices an imperialistic approach of divide and rule by insisting on secrecy and gagging its victims (or scapegoats) in isolation. There’s a reason why the EPO wants to keep its so-called ‘investigations’ secret. They’re not really investigations but personal attacks or union-busting actions. People who support the busting of unions are on the wrong side of history. █
“Duty is what one expects from others.”
–Oscar Wilde
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Posted in Europe, Patents at 8:01 pm by Dr. Roy Schestowitz
Increased French militarisation of the EPO
Summary: Echoing Parisian trends, the EPO is promoting someone from the French secret services, who served in Afghanistan (and some say has distant connections to Control Risks)
THE EPO clearly isn’t an ordinary institution. It has become a den of intimidation and abuse. The intimidation and abuse come from the management, so it’s a top-down thing, not some kind of uprise or revolt from the bottom.
The previous post highlighted the EPO’s departure from the rule of law (due process for instance). The priority at the EPO these days isn’t granting patents but bullying critics, even outside critics.
“The priority at the EPO these days isn’t granting patents but bullying critics, even outside critics.”Not too long ago we mentioned Lefèvre's role in the notorious Investigative Unit, or I.U. ("gestapo" is what some people call it internally because of its methods [1, 2, 3, 4, 5, 6]). She was also involved in a so-called 'communication campaign', which was basically propaganda intended to pretend that EPO staff is generally happy (even though almost everyone is not).
In the last part of our series about Elodie Bergot and Gilles Requena we mentioned how Lefèvre was likely to be appointed to a certain high role and how right were our sources! “As seen today on the EPO intranet,” a source told us, there is now “an update on the incredible careers of two extremely bright and gifted ladies…” (the second one being Bergot, c/f part one, part two, part three of “EPO: It’s Like a Family Business”).
Our source joked: “How many others applied for the director post? If any, were they invited to Ms. Lefèvre’s directorate for an interview, or did the Investigation Unit pay them a visit for an in-depth, on-the-spot check of their qualifications?”
Well, the appointment was announced by none other than Željko Topić, whose history crushing people whom he doesn’t agree with we covered here last week.
Home->Organisation->DG4->The Vice-President->Announcements->2015
New Director in PD 4.3
08.12.2015
New Director HR Strategic Support and Change Management
I am pleased to announce the nomination of Ms Nadja Lefèvre as new Director HR Strategic Support and Change Management with effect from 1 January 2016. Directorate 4.3.0 HR Strategic Support and Change Management combines the units internal Communication, Conflict Resolution as well as Administrative Services for Social Dialogue. Ms Lefèvre’s previous role as Advisor to PD 4.3 will be taken over by Ms Najoie Sayeh-Bourgeois, currently HR Partner.
The DG 4 management team and I welcome Ms Lefèvre and Ms Sayeh-Bourgeois to their new roles and wish them every success in their new functions.
Željko Topić Vice-President DG 4
08.12.151 Author Željko Topić – Vice-President DG 4
What a splendid promotion. It’s not even a surprise at this stage. Team Battistelli is moving further up while its opponents are in the process of ejection.
“The office told WIPR the unit consists of six members: three investigators, two support staff and one head of the unit.”
–WIPRAccording to a new WIPR article about Thursday’s expected protest (titled “EPO staff to hold third demo in as many weeks”), “the EPO is hiring an investigator with forensic specialities to join its investigations unit.
“The office told WIPR the unit consists of six members: three investigators, two support staff and one head of the unit.”
They are expanding, based on these recent job advertisements. What’s the pretext/excuse? Well, everyone who dares to question Team Battistelli is now "Mafia", "Nazi", "Sniper", or something along those lines. The aggressive management uses projection to basically characterise its exposers or critics as armed and dangerous.
Incidentally, SUEPO has just issued a statement titled “Countering the propaganda“. In it, SUEPO states:
Management is alleging that some of its senior members received threats, inside and outside of the Office. A spokesperson for the EPO told WIPR that “EPO officials (senior managers but also colleagues at working level) are increasingly subject to personal attacks and undue exposure through blogs, flyers, and calls for violence”.
If there have been individual threats, surely the Office will have acted directly against the culprit (and rightly so). But we have never seen a flier or a blog calling for violence. We wonder if such allegations are not fabricated to harness sympathy among staff and outsiders, at a time when senior management has (finally) landed under intense public scrutiny for their actions. No matter how much they try to portray themselves differently, (senior) managers are not the victims: they are the perpetrators of institutional violence, particularly violence directed against those who dare to express disagreement with certain policies.
Such cheap allegations discredit EPO staff. They call into question our integrity and are an insult to our dignity of honest employee. We do not deserve that. We are committed to seeking change through peaceful protest, negotiation, transparency, and the application of checks and balances – not through threats and intimidation.
Management should commit to the same.
We have been writing about this for well over a month and when asked by journalists too we told them that there was a fictional narrative being used by the EPO’s management. It’s a common strategy and it’s potentially a defamatory strategy. We often find that, contrary to the EPO management’s claims, it is actually the management which engages in a campaign of defamation. █
“Most writers regard truth as their most valuable possession, and therefore are most economical in its use.”
–Mark Twain
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Posted in Europe, Patents at 7:25 pm by Dr. Roy Schestowitz
Summary: Why the EPO’s attack on staff representatives is so outrageous, based on a legal letter sent to the UN’s Special Rapporteur for Freedom of Speech and Expression, Special Rapporteur for Freedom of Association, Special Rapporteur for Human Rights Defenders, Jesper Kongstad (Administrative Council), and Director of the Netherlands Patent Office
IN order for people to understand just how out of line the EPO‘s management has stepped, at this point in time we may need to show some legal documents which explain what the EPO’s management is actually doing.
The lawyers' response which we published here earlier today we now have in textual form. This reply is important as it helps highlight some of the things wrong with the EPO’s approach. It was also copied to some staff at the United Nations.
Having received it from several sources (not just one), we now wish to post this as HTML. “This one is already two-weeks old,” told us one source, “but just came out.” This source is aware that many people are becoming aware of this response (as they probably ought to). “It will probably reach you by more than one correspondent,” we were rightly told.
Here it is without any annotation or emphasis:
SCHWAB | FLAHERTY | ASSOCIES
Attention : Nouvelle address
7, rue de Candolie
CH-1205 Geneve
Alexandre J . Schwab
Avocat – MBA
Edward Patrick Flaherty
Attorney at law – Member of the US Supreme Court
and Massachusetts Bar
Membre de l’Ordre des Avocats de Geneve
Michael Ford Shanahan
Attorney at law – MBA
Member of the US Court of Appeals
for the Armed Forces and Colorado Bar
Can Burak Bayhan
Attorney-at-Law
Economist/stock & FX Expert
Member of the Istanbul Bar Association
Monika Ona Bileris
Attorney- at-Law
Member of the New York Bar (USA)
RECOMMANDEE & PAR
COURRIEL
Mr Jesper Kongstad
Director General
Danish Patent and Trademark Office
Helgeshoj Alle 81
2630 TAASTRUP
DANEMARK
e-mail: -
Mr Derk-Jan De Groot
Director–Netherlands Patent Office
P.O. Box 10366
2501 HJ DEN HAAG
PAYS-BAS
e-mail: -
Geneva, 23 November 201:5
Concerne: Ms Elizabeth Hardon v European Patent Office (EPO)
Dear Sirs:
Further to my three (3) prior letters to you concerning my client, EPO Staff member Ms. Hardon, dated 8 and 21 October, and 11 November 2015, respectively1 by which we
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1 These letters detailed a number of procedural and substantive detects in the pending disciplinary proceedings against Ms. Hardon, which are clearly directed against her on account of her actions in her capacity, to wit:
*the charge letter of 4 September 2015 (case N°. – –detailed in my letter and attachments of 8 October 2015) did not state the name of the complainants (in violation of ILOAT Judgment N° . 2014 which holds that it is “contrary to due process to require an accused staff member to answer unsubstantiated allegations made by unknown persons”), the source of the purported statements asserted as misconduct in the letter, or any evidentiary basis for the initiation of the investigation against Ms. Hardon.
*the charge letter of 4 September makes clear that the claims against Mr. Hardon (that she “orchestrated and promoted” a harassment campaign against an EPO colleague, and that she later attempted to intimidate other staff representatives) were based on confidential meetings of the Local Staff Committee in Munich, which is both an egregious breach of confidentiality as well as the right of all EPO staff members to exercise their freedom of speech and association.
*the charge letter of 4 September claims that a single (indeed misquoted) sentence expressed in a confidential discussion among duly elected EPO staff representatives, and at best an assertion of an opinion rather than one of fact, amounts to actionable “harassment”.
*As indicated in my letter of 8 October, the charges of 4 September 2015 are very similar to specious harassment charges brought against Ms. Hardon nearly two years ago, also in her capacity as a staff representative, also based on a single sentence, expressing the collective opinion of several staff representatives, contained in a confidential email sent to 16 recipients who were either elected staff representatives or experts retained by such
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demanded that you initiate an independent investigation into her claims of institutional harassment, Ms. Hardon was now been advised by letter dated 17 November 2015 from the Principal Director for Human Resources, – , that she was suspended immediately from service until further notice, on the basis of allegations of alleged harassment detailed in my prior letters to you referenced above (extract attached). Additionally, Ms. Hardon is now accused of conspiring with a suspended EPO staff member from DG3 “to systematically and repeatedly disseminate defamatory information”, and to have communicated “with various members of news outlets, throughout 2013 and 2014, disclosing without authorisation non-public information”. It appears obvious that the Office will move swiftly to terminate Ms. Hardon’ s appointment, which has clearly been its bad faith intention all along.
Ms. Hardon has denied any and all allegations of misconduct against her and continues to do so. The latest specious and vexatious allegations of misconduct now form the subject of yet another disciplinary proceeding. This brings the number of disciplinary complaints which are being simultaneously prosecuted against her to three (3). In and of itself, this would tend to confirm her assertions of institutional harassment. It also makes it clear that the latest allegations can only be seen as a further, irregular continuance of the institutional harassment alleged in the previous demand letters. This is particularly true in view of the fact that one of the procedural defects detailed in my letter to you of 11 November 2015 (namely, that Ms. Hardon’s accuser was not disclosed to her) has now been resolved in part with the revelation that the complainant is in fact -, the EPO Principal Director for Human Resources. The fact that the complainant is the very same person who is prosecuting all three disciplinary cases against Ms. Hardon is in itself a gross violation of due process.
The suspicion of serious procedural irregularities is further supported by the fact that a considerable number of critical documents to which Ms. Hardon is entitled to review as part
of her fundamental right of defence were missing from the annexes to the letter informing Ms Hardon of Disciplinary Procedure N°. D – dated 17 November 2015 (attached). Her response and request for such missing documents is also attached hereto.
Additionally, it is our information and belief that the Enlarged Board of Appeal decision (Art. 23/15 of 17 September 2015) found that the charges against the staff member primarily
accused in case C- and the related case – were not substantiated. Accordingly, it is
__________________________________
representatives. Despite the irregular and ultra vires finding of the Investigative Unit that the charges were “founded and proven”, the responsible Disciplinary Committee, properly mandated to evaluate whether the conduct of Ms., Hardon was incompatible with several articles of the EPO Service Regulations, found unanimously in Ms. Hardon’s favor and rejected the charges against her, recommending that the President close the proceedings and reimburse her legal fees. Despite this unanimous recommendation, the President imposed a down-grading upon Ms. Hardon, which decision is under appeal at the ILOAT. They also parallel prior false charges of harassment levied against Ms. Hardon for “campaigning against” another staff member, which charges were set aside by the ILOAT in its Judgment N°. 2984.
*As pointed out in my letter and attachment of 8 October, the initiation of repeated disciplinary proceedings against Ms. Hardon on the basis of specious and frivolous misconduct charges, all of which to date have been rejected by the EPO Disciplinary Committee and the ILOAT, is further incontrovertible evidence of the EPO’s ill will towards Ms. Hardon in particular and its bad faith against staff representatives generally, which numerous hostile and intimidating attacks against her personally have set back Ms. Hardon’s career leading to financial as well as professional injury, damage to her dignity and reputations, causing significant injury to her health.
*Ms. Hardon’s suspicion that she is the target of an orchestrated campaign by senior EPO officials to drive her out of the Office on false grounds is confirmed in her letter attached to my letter to you of 21 October 2015, where it is revealed that the complainant in Case N°- is not the staff member alleged to have been harassed, but in fact – who is also prosecuting the case against Ms. Hardon, a further gross violation of fundamental due process.
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a legal impossibility for Ms. Hardon to have been an accomplice with her colleague when his actions were not found to be misconduct, requiring that all charges against Ms Hardon arising out of case C- and the related case C- be forthwith dismissed.
Finally, at the point in time when the Investigation Unit invited Ms. Hardon to comment on the summary of findings in the latest investigation case C- the Office Administration had already decided to initiate a disciplinary procedure against her incorporating allegations from Case-. This action on the part of the Office Administration appears to have been motivated by her actions in rightly declining to submit to an interview when she had already been identified as a target of the subject investigation2>. Her “refusal” to attend an interview pending clarification of deficiencies in the invitation was not in any way a refusal to cooperate with the investigation. The Office Administration has apparently responded by making the allegations from C- the subject of a disciplinary action (see enclosed annex) despite the fact that the case had not yet been closed. As a matter of fact, at the point in time when the disciplinary report was issued, i.e., 17 November 2015, the deadline for the submission of Ms. Hardon’s written comments on the summary findings pursuant to Art. 18 (1) of the EPO Investigation Guidelines (which was set for 23 November 2015) had not yet expired. In addition to violating the cited jurisprudence, these actions would also appear to be in breach of Art. 18 (2) and (7) of the EPO Investigation Guidelines and, moreover, would appear to undermine the integrity of the investigation.
You have thus far failed to take any action in response to Ms. Hardon’s requests for an investigation into the harassment claims against her, in violation of applicable ILOAT jurisprudence3. On behalf of Ms. Hardon, I therefore repeat once again her request for an
__________________________________
2 In the recent UNDT decision Judgment No. UNDT/2011/081 (Cabrera), the level of due process to which an international civil servant is entitled when he or she becomes of the “target” of a misconduct investigation was clearly stated: “In conclusion, the Tribunal is of the opinion that the assurances of due process and fairness … mean that, as soon as a person is identified, or reasonably concludes that he has been identified, as a possible wrongdoer in any investigation procedure and at any stage, he has the right to invoke due process with everything that this guarantees. Moreover, the Tribunal finds that there is a general principle of law according to which, in modern times, it is simply intolerable for a person to be asked to collaborate in procedures which are moving contrary to his interests, sine processu.”
“It is a fundamental principle of due process that where an individual has become the target of an investigation,then that person should be accorded certain basic due process rights …as soon as a person is identified, or reasonably concludes that he has been identified, as a possible wrongdoer in any investigation procedure and at any stage, he has the right to invoke due process with everything that this guarantees. Moreover, the Tribunal finds that there is a general principle of law according to which, in modem times, it is simply intolerable for a person to be asked to collaborate in procedures which are moving contrary to bis interests, sine processu.”
ILOAT Judgments No. 2475 and No. 295 also confirm this view, dictating that investigations must “be conducted in a manner designed to ascertain aU relevant facts without compromising the good name of the employee and that the employee be given an opportunity to test the evidence put against him or her and to answer the charge made.”
The fundamental requirements of due process set out above have indisputably been egregiously ignored in Ms. Hardon’s case to date, which she shall vigorously contest in all fora available to her.
3 ILOAT Judgment N°. 3485 at consideration 16: “It is not controverted that some of [the complainant's] complaints went unanswered. This shows that there was a degree of indifference regarding his express concerns. This was not only another aspect of harassment but also a breach of the ICC’s duty of care towards the complainant which, in addition to the breach of due process, entitles him to moral damages [...].”
And ILOAT Judgment N°. 3377 at consideration 14: “The evidence further shows that the Organization also breached its duty to ensure that his complaints were addressed in a proactive manner ….”, and at consideration 26: “Firm precedent has it that when an official makes allegations of harassment, she or he is entitled to have
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immediate, independent investigation by an external authority into her harassment allegations, including the most recent specious allegations against her, and further, that you take immediate, meaningful interim measures to stop such alleged institutional harassment of Ms. Hardon, including the lifting of her irregular suspension, and prevention of EPO’s intended imminent termination of her appointment. Please treat this demand as a further request for a final administrative decision.
Thank you for your courtesy and attention; we look forward to your prompt reply.
Enclosures
Cc: client
UN Special Rapporteur for Freedom of Speech and Expression
UN Special Rapporteur for Freedom of Association
UN Special Rapporteur for Human Rights Defenders
__________________________________
them dealt with in accordance with the rules and procedures in force (see Judgment 2642, under 8). If an organisation fails to do so, it breaches not only its own policies and rules, but also its duty of care towards the official.”
And ILOAT Judgment N°. 3347, at consideration 14: “However, given the serious nature of a claim of harassment, an international organization has an obligation to initiate the investigation itself in a timely manner and the corollary obligation of ensuring that the internal body responsible for investigating and reporting on claims of harassment has the necessary resources to carry out that responsibility (see Judgment 3069, under 12).”
And Judgment N°. 3337 at consideration 11: “The Tribunal has consistently stressed the serious nature of allegations of harassment in the workplace and the need for international organisations to investigate such allegations promptly and thoroughly. This is a function of the organisation’s duty of care to its staff members to uphold their dignity. [... ] »
There may still be some typos or unintentional omissions above. The intentional omission is the name Bergot (c/f part one, part two, part three, and part four of “EPO: It’s Like a Family Business”), which isn’t just engaging in some kind of ‘cat fight’ here as she is clearly the “complainant [and also] the very same person who is prosecuting all three disciplinary cases against Ms. Hardon” which is “in itself a gross violation of due process.” █
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Posted in Europe, Patents, Petitions at 8:46 am by Dr. Roy Schestowitz
"Nazis", "Snipers", “Mafia” and the name-calling strategy of Team Battistelli
Summary: The gloves come off as Battistelli resorts to name-calling and European patent attorneys increasingly defect to the side of protesters (staff of EPO), expressing dissatisfaction if not disgust at the EPO’s management
THERE is no denying that the EPO‘s management is extremely popular right now.
According to this new article, the Tony Soprano-like Battistelli says that SUEPO “is not a trade union [but] a mafia-type entity” (look who’s talking). In a recent poll, 96% of respondents expressed concern and almost half of the staff is brave enough to march against the management. We have heard estimates of over 800 EPO employees protesting in The Hague and over 2,000 in Munich last week. This new summary from Merpel gives similar figures and justifiably wonders what will happen next:
Three members of the EPO Staff Committees have been suspended, as Merpel reported here. In support of their suspended colleagues, further demonstrations have been taking place (Merpel reported the initial one here) – and now she hears that the further protest in the Hague on 1 December numbered around 600 EPO employees, while that in Munich on 4 December attracted over 2000. It is clear that the unrest within the EPO at various things, including the treatment of these officials, is widespread – these numbers are pretty much without precedent.
[...]
There seems to Merpel to be an unsustainable escalation in conflict at the EPO. This affects both the general employees, and also the Boards of Appeal, as Merpel reported here. There seems to be a somewhat raised level of political interest in member states now, but how long must Merpel keep writing that something must be done?
See a certain pattern in early comments. Trying to frame this as a general problem (affecting a lot of public bodies) is serving to distract from the EPO’s situation. I know this type of media strategy fairly well because Microsoft uses that too (trying to characterise other companies as ‘equally evil’).
To quote one comment from a British lawyer(from the comments section):
Does anyone have any ideas how we can prevail upon the AC to act – assuming, that is, that they’re not actively complicit in BB’s wrecking of the entire system?
As a GB-based attorney I can write to my national delegates on the AC, but it’s easy for them to ignore correspondence from a single person. If a substantial proportion of GB representatives were to write, individually, they’d hopefully find it harder to ignore. Similarly with attorneys in other countries, there is strength in numbers if we all write to our national delegates.
Are the relevant national professional associations taking any action? Has CIPA made any representations to the GB delegation? Has EPI made representations to any AC delegates? (I know both made submissions on the BoA reform proposals, which were largely ignored, but surely it is time for both CIPA and EPI, and their counterparts in other member states, to make a more general intervention directly to the AC members.)
If the largest EPO-using law firms and companies in each member state made official representations to the AC would these carry any more weight?
The IPKat is performing a great service in Kataloguing all of the perverse developments at the EPO but the time has come for us to speak up directly to those in power. While the complaints are being documented on a handful of blogs, the AC and the management can disregard these as being just some bloggers’ opinion. We can’t just sit on the sidelines and complain amongst ourselves, watching while the EPO management continues to ride roughshod over its employees – we users need to let the EPO know that we are concerned too, and that the opinion of the blogs is shared by many practitioners.
Who will coordinate such action?
As was hinted earlier today, we now consider setting up (or helping to set up) a petition, maybe organise some kind of action which can compel the abuses by EPO management to stop. Hitting them where it hurts, it might help to embargo or discourage further patent applications unless or until some ultimatum is met (e.g. allowing external auditors and an independent investigation to take place at the Office). It may be the only remaining way to resolve this AC-Team Battistelli deadlock. █
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Posted in Europe, Patents at 8:04 am by Dr. Roy Schestowitz
Historically familiar situations…
Edited public domain photograph
Summary: The sordid mess inside the EPO — or the management’s attempts to use smears and witch-hunts to sedate whistleblowers (leading to an ever-exacerbating cycle of crises) — is now being properly tackled by a staff representative’s legal representative
THE previous post gave just a taste of how the EPO’s abusive management, along with its praetorian guard, is trying to frame the whole crisis. Naïve or impressionable outsiders are supposed (if the expensive media strategy succeeds) to think that what we have here are poor, victimised men in suits (management) against armed Nazis and snipers, or something ludicrous along these lines. Those highly-paid managers are, in our view, dealing with something that’s akin to whistleblowers, not staff representatives (whistleblowers’ lawyers should not be needed here because it’s not clear who, if anyone among staff representatives, actually blows a whistle). The ‘dirty laundry’ is coming out and the management is trying to punish the perceived bringer of the laundry rather than actually clean this laundry. How foolish do they think staff will be? Are there actually enough people smart enough to be recruited by the EPO who are also, at the same time, this gullible? It’s not as though EPO management sticks to facts. Not even the almighty President sticks to facts.
As far as we’re aware, we never ever spoke to a staff representative at the EPO. Ever. Unless someone was using a fake identity. But this is of course detrimental to the dossier served by or to the management (Team Battistelli and its praetorian guard), failing to actually provide any evidence of staff representatives sending anything to the media. The thugs’ incredulous smiles wouldn’t satisfy an honest judge.
Anyway, a short response was provided by the accused and there is also a more detailed response from the lawyers (who Team Battistelli probably hopes will help drain all the savings of the accused). It’s a 4-page response:
We haven’t highlighted anything in the above because we don’t want to tamper with the text.
Meanwhile, over at SUEPO, it has just been stated that there is an issue with the discussion about “Workload and effectiveness of the ILO Tribunal”. As SUEPO puts it:
In a recent document, the ILO Legal Advisor and the ILO Administrative Tribunal blame the number of complaints coming from the EPO for the Tribunal’s current workload and effectiveness problems. CA/21/15, a report by the external auditors of the EPO, confirms problems in the internal justice system of the EPO (see in particular points 13-15 and 59-61). In response the Governing Body of the ILO requested its Director-General “to initiate without delay discussions with the European Patent Organisation … in order to identify a solution to the difficulties …” (point 33 of the above mentioned document). Staff representatives are only to be “consulted”, and that only afterwards.
ILO defines its mission and objectives as “to promote rights at work, encourage decent employment opportunities, enhance social protection and strengthen dialogue on work-related issues” (emphasis added).
SUEPO was therefore shocked and dismayed to see that the governing body of ILO (International Labour Organisation) proposed discussions with representatives of the President without involving representatives of the staff. On behalf of SUEPO and the other staff associations that rely on the Tribunal for justice, SUEPO’s lawyer, Ed Flaherty, has requested to involve staff representatives from the outset. Click here to access the letter of Mr Flaherty.
We covered this on a couple of occasions before [1, 2].
Here is the letter from Mr Flaherty as images (people don’t tend to bother with PDF files on the Web).
There is a lot more coming. If we have been writing a lot (and more frequently) as of late, it’s because a lot is happening a lot needs to be shown. The EPO’s attempts to gag Techrights (with censorship and threats) truly backfired; these only led more people to choosing Techrights as their reporter. It also led to a lot more sources coming to us (so a lot of the breaking news and exclusive coverage now happen in Techrights). █
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