12.03.16
Posted in Europe, Patents at 11:46 am by Dr. Roy Schestowitz
Summary: The backlash against Battistelli spills well outside the EPO and is now apparent even at the French National Assembly
THE EPO may not be the only casualty of the rather psychopathic (with God complex) Benoît Battistelli, the man who was somehow put in charge of the EPO only to destroy the institution Europe once took pride in.
Battistelli is certainly one for the history books; he does enormous damage not just to the EPO technically (bad patents, brain drain etc.) but also to its reputation. Moreover, he spoils the reputation of France and creates/reinforces an antipathy stigma that’s hard(er) to shake off, even though some of Battistelli’s victims are French.
Repeating what was said before by a female French politician (arguing Battistelli is “extremely damaging to the image of France”), Philip Cordery now tells the French National Assembly that Battistelli is a “disgrace to France”, according to this new article from The Register (published on a Saturday, their third article about the EPO this past week). To quote:
President of the European Patent Office (EPO) Benoit Battistelli is a disgrace to his country, the French National Assembly heard Wednesday.
“La présence du Français Benoît Battistelli à la tête de l’Office nuit aujourd’hui gravement à l’image de notre pays,” stated MP Philip Cordery in an address to the secretary of state for industry, Christophe Sirugue.
The extraordinary personal attack comes as a number of politicians, media organizations and staff unions across Europe have joined a growing chorus of criticism against the civil servant for continued attacks on his own workers.
For over a year, Battistelli has held several key members of the EPO staff union in disciplinary hearings and on restricted pay, claiming that they had been intimidating other employees. Last month, he took the momentous decision to fire the union’s former secretary, Laurent Prunier, despite an explicit resolution of the EPO’s governing Administrative Council telling him not to do so.
Comments in IP Kat (right now/this past week) aren’t much more flattering and some some of them blame more than just Battistelli; blame is put also on the Council for refusing or failing to fire Battistelli and his ilk.
To quote one comment:
You may well be right. Perhaps this is why Monsieur le President feels so secure, despite conducting himself in a manner that would land him in civil court (and perhaps also in criminal court) in any EU country.
This does beg the question: if EU leaders wanted to achieve certain goals that would currently be illegal due to some irksome EU law or other, could they set up an international organisation in order to effectively bypass those laws?
For example, in order to deal with troublesome political enemies, could one or more EU Member States set up an international organisation (with the usual privileges and immunities granted to its staff) with a name such as “Totalitarian Organisation for the Re-education of Those Undeserving of Rights in Europe” – or “TORTURE” for short? I would like to think not, but what would stop it?
If there are mechanisms that would stop the creation of a hypothetical organisation such as TORTURE, what are they? Would any of them be applicable to the EPO? If they would, is it too late to trigger them now? If not, how can they be triggered?
It is clear that the President and his cronies have taken actions that are not “strictly necessary for its [the EPO's] administrative and technical operation”. I mean, at what point could it ever be argued that it is “strictly necessary” to fire a staff representative when your governing body has explicitly told you not to? Thus, due to the limitations of immunity under Article 3 PPI, the Organisation, if not any of its individual staff, ought to be liable for suit in a national court. Such suit might raise interesting questions of the duty of the President under Article 19(2) PPI.
I do hope that there is a way out of this mess for the EPO. However, I fear that only legal action at a national court will be the answer: as what is to stop another clique of self-serving, money-grabbing, sociopathic “politicians” taking over the management of the EPO once the current President finally leaves?
In reference to the Dutch Supreme Court:
I suspect the Dutch Supreme Court Appeal might answer your question. It seems the court will find in favour of the EPO but, of course, the decision may well say a lot more about whether the EPO is morally wrong but technically safe. In doing so it should define the boundaries since that is the crux of the matter – where does immunity start. Don’t be surprised if the court is very direct and critical.
The discussion about the Dutch Supreme Court continues as follows:
Despite the AG’s opinion, I can’t see any reason to believe that it is likely that the Dutch Supreme Court will find in the EPO’s favour. This is because the AG’s opinion is so demonstrably full of holes that it is embarrassing. ILO-AT’s remit simply does not cover complaints relating to the rights at issue, and so to point to the possibility of complaining to ILO-AT is no answer to the plaintiff’s arguments.
But perhaps you know something about the Supreme Court’s decision-making process that I do not.
I would rather have expected that the government of the Netherlands (as well as all other national governments and/or heads of international organisations) would be at pains to avoid any suggestion of “political” interference in the Dutch judiciary. The independence of the judiciary is, after all, one of the cornerstones of democracy in Europe.
Eponia does not need to obey anyone though, as it even openly brags about ignoring the Dutch Supreme Court if found guilty. As one person put it:
The independence of the judiciary is, after all, one of the cornerstones of democracy in Europe.
What century are you living in ?
Certainly not the 21st century in Eponia !
What a load of quaint antiquated Montesquieuesque nonsense !
ILO’s ruling too can probably be ignored by Battistelli’s EPO and here is one comment about ILOAT, citing a PDF that we uploaded about a week ago.
One of the two decisions which had been announced for exceptional public delivery by the ILOAT is now available here:
http://techrights.org/wp-content/uploads/2016/11/ilo-3785.pdf
It doesn´t seem extraordinary, but it is, and it might have serious implications for other appellants as well: the ILOAT refused to examine the case before it on its merits, but sent it back right away to the EPO for reconsideration by an Appeals Committe “composed in accordance with the applicable rules” (!!!)
By analogy it must be expected that the numerous cases pending before the ILOAT concerning e.g. the disciplinary measures taken against staff mambers, or the contested guidelines relating to investigations, data protection, right to strike, etc … will be remitted to the EPO in the same way. It is a pity, and clear evidence that the EPO administration does not even abide to the most elementary statutory rules.
“Facts are opinions,” one person wrote. “This is what EPO communication is about now. Facts are opinions…”
EPO announcements/interviews/messages to media are also filled with lies these days. Lies have become the norm; it’s a post-truth era for the EPO.
Battistelli, a Republican, does not seem to care what’s true, much like Donald Trump with his utterly bizarre opinions on climate. Only says ago Trump’s spokesperson Scottie Nell Hughes said “there’s no such thing as facts” and she earned many headlines for that outlandish remark.
Here is the full comment about the EPO:
Facts are opinions. This is what EPO communication is about now. Facts are opinions, firing staff representatives is not what it looks like, it is based on individual circumstances, it so happens that 100% of dismissals target senior union members. And opinions are facts: really, yes, the unnamed board member hid nazi memorabilia and weapons in his office, after all who are you to disagree, I am the one controlling communication here. All of this is a matter of degrees in a scale with no beginning and no end.
So of course no definitive action need be taken by the administrative council. We are all still talking and arguing, you see. Let us put things in perspective.
From my perspective, the time for talking is long gone; communication has become corrupted and dangerous. The rule of law has become an esoteric detail standing in the way of “modernisation” and “reforms”.
Do not ever take BB and his cronies for anything other than what they are.
The authoritarian style of management championed by the likes of Putin and Battistelli does no favrour to France ahead of increasingly worrisome elections. Battistelli’s political party seems to be having issues and a reader told us that “Sarkozy got sodded at the first round! Bastardelli’s caring daddy won’t get upped!! Yuk yuk!!!”
Well, maybe he’ll stay around at the EPO even longer than his current term, or work at some capacity to fulfill his horrible UPC fantasies (he has done this for more than half a decade).
Here is one more comment:
It is a pity, and clear evidence that the EPO administration does not even abide to the most elementary statutory rules.
That is only the tip of the iceberg.
The real problem is that the AC will not demand any consequences or call those responsible for the mess to account, in particular DG5 legal services dilettantes who have created the problem with their anticipatory obedience to the forces of tyranny.
You really have to wonder whether the AC will even realise the significance of this judgement.
We won’t be quoting any more comments because many of them merely give a platform to trolls. The economics of Internet trolling are spectacular. One provocative comment is enough to cause a storm and take everything off topic. Readers of ours who also read IP Kat comments (especially over the past fortnight) will know what we mean. █
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Posted in America, Patents at 1:27 am by Dr. Roy Schestowitz
Whenever you apply for a dubious patent a kitten (or teddy bear) dies
Summary: Challenging the false belief that the more patents society has the better off it will be, citing examples and news from north America
PATENT maximalism is a mindset if not a cult, promoted and spread mostly by those who profit from patent bureaucracy without creating anything (they don’t risk getting sued themselves). We often emphasise that in order for patent systems to maintain legitimacy (corporate and public support) they must ensure that patent quality is preserved (or attained/restored when lost). The interests of the wider public, or the externality, must be taken into account when defining boundaries for patents (patentability criteria). The same goes for copyrights and suffice to say copyright reformers now enjoy public support, which is why political parties like the Pirate Party almost gained control of Iceland last month.
“What is your take-away?”
That’s what a patent maximalist asked at the start of this month when he presented a new graph of his, showing “Provisional Patent Application Filings”. I responded by saying that “getting utility patents in the US is getting easier, as quality in this domain is reduced…”
An increase in the number of patents should never be considered good news (good luck explaining this to a lunatic like Battistelli!)… unless these patents are somehow truly indicative of increase in innovation. Otherwise these may simply be indicative of declining quality control (or broadened scope/domains). The same goes for examination in schools and colleges; it’s often said here in Britain that if more students pass or excel at exams (with average grades going up), then it simply means that the exams got too easy/predictable and thus a poor/inadequate measure/yardstick of skills, intelligence, etc. (incapable of distinguishing good students from lesser good students).
According to this new report from MIP, “2016 Canada IP Report reveals fall in patent applications”. Here is the gist of it:
2016 Canada IP Report reveals fall in patent applications
A report co-authored by CIPO reveals statistics on patent and trade mark filing and granting in Canada since 2016
The Canadian IP system remains strong and that trends of the past several years mostly continued into 2015, according to a report released by Innovation, Science and Economic Development Canada and the Canadian Intellectual Property Office (CIPO).
The 2016 Canada IP Report provides filing data and analysis of Canadian IP rights domestically and abroad. It focuses on comparisons of last year’s statistics to those since 2006.
Is that really a bad thing?
Maybe there are alternative paradigms for interpreting this data. Later on (probably this weekend) we shall show what a mess the Chinese patent system is becoming due to SIPO’s terrible policy (we’ve already alluded to this in our previous post).
The patent maximalist now conveniently conflates patents with “property” (“Patent Law vs Property Law” — along the lines of the misleading term “Intellectual Property”), as if the more you have of it, the better. Pieces of paper that can be photocopied or whatever are hardly equivalent or equitable w.r.t. physical things. Moreover, with software patents, many of these papers describe things that are not physical, either. This kind of lunacy which is calling patents “property” needs to end in order to us to recognise what patents really are: a temporary, government-granted monopoly, given in exchange for publication (or dissemination) of ideas. I am not against patents, but I recognise their limitations and I believe that patents need to be few and defensible (in the broader societal interest/context).
Consider this new paper from a patent reformer/ist, Professor Mark A. Lemley. Watch what happens when patent maximalism goes out of hand. “Inventor Sued for Infringing His Own Patent. You Won’t Believe What Happened Next” is the title of the paper and here is the abstract (with our emphasis added):
The Supreme Court and the Federal Circuit have repeatedly emphasized the public interest in testing the validity of patents, weeding out patents that should not have been issued. But there is one important group of people the law systematically prevents from challenging bad patents. Curiously, it is the very group patent law is supposed to support: inventors themselves. The century-old doctrine of assignor estoppel precludes inventors who file patent applications from later challenging the validity or enforceability of the patents they receive. The stated rationale for assignor estoppel is that it would be unfair to allow the inventor to benefit from obtaining a patent and later change her tune and attack the patent when it benefits her to do so. The Supreme Court has traditionally disfavored the doctrine, reading it narrowly. But the Federal Circuit has expanded the doctrine in a variety of dimensions, and applied it even when the benefit to the inventor is illusory. Further, the doctrine misunderstands the role of inventor-employees in the modern world.
More important, the expansive modern form of assignor estoppel interferes substantially with employee mobility. Inventors as a class are put under burdens that we apply to no other employee. If they start a company, or even go to work for an existing company in the same field, they will not be able to defend a patent suit from their old employer. The result is a sort of partial noncompete clause, one imposed without even the fiction of agreement and one that binds anyone the inventor comes in contact with after leaving the job. Abundant evidence suggests that noncompetes in general retard innovation and economic growth, and several states prohibit them outright, while all others limit them. But assignor estoppel is a federal law doctrine that overrides those state choices.
It is time to rethink the doctrine of assignor estoppel. I describe the doctrine, its rationale, and how it has expanded dramatically in the past 25 years. I argue that the doctrine is out of touch with the realities of both modern inventing and modern patent law, and that it interferes with both the invalidation of bad patents and the goal of employee mobility. Should the Supreme Court take up the doctrine, it is unlikely to survive in its current form. Rather, it should – and will – return to its much more limited roots.
Stop patent maximalism at the EPO, the USPTO, and everywhere else. It has become an impediment to progress (or “innovation” — being the more popular buzzword among law firms) and thus antithetical to the whole basis of patent systems. █
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Posted in Free/Libre Software, Patents at 12:46 am by Dr. Roy Schestowitz
Part of the duopoly (with Visa)
Summary: Worrying signs that an area of Free/Open Source software innovation is getting impacted by the plague of software patents
EARLIER this year we alluded to Blockchain patents in relation to a sham promise from a company with no patents. It ought to be be widely known — as it certainly is widely recognised among people in the profession — that software patents on financial stuff are the least likely to survive in courts (irrespective of what USPTO examiners do).
And yes, according to this new article, “MasterCard (MA) Files for Blockchain Patents” (!).
A new article from Fortune (published yesterday) is titled “Are Blockchain Patents a Bad Idea?”
Consider whose interests Fortune is serving.
“Remember the connection of Blockchain to Bitcoin, Free/Open Source software, GNU/Linux, and the Linux Foundation. A lot of those are inherently not compatible with patents.”Truly troubling.
Remember the connection of Blockchain to Bitcoin, Free/Open Source software, GNU/Linux, and the Linux Foundation. A lot of those are inherently not compatible with patents.
Earlier today Sam Dean published the article “Will Patent Wars Bog Down the Blockchain Movement?”
Well, they can certainly cause a lot of damage. Other news about Blockchain today is optimistic about business prospects of Blockchain, but what happens if over the next year or two the most news we hear about Blockchain and hyper-ledgers relates to patents? As we noted here before, even Goldman Sachs dives into this gold rush of patents in this particular area.
Software patents need to end, but while the US cracks down of them they appear to have already spread to China, as we shall show later in the weekend. █
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Posted in Deception, Europe, Patents at 12:05 am by Dr. Roy Schestowitz
Remember that the EPO under Battistelli spends over a million Euros per year just manipulating the media
“[Microsoft's] Gates is trying to make sure that he has a proprietary position in controlling the tools that allow you and me to access information. And that’s profitable by definition. How would you like to own the printing press?”
–PaineWebber Media Analyst Christopher Dixon
Summary: Our observations regarding the apparent media disinterest in EPO scandals, especially at the very core of the EPO (principal host country)
LAST year, this year [1, 2, 3], and to some lesser degree even 2+ years ago we explained why German media barely covers EPO scandals (which happen right next door), being connected to beneficiaries of this whole arrangement in Munich and Berlin. Last week we also noted that the media in tiny Luxembourg wrote more articles about EPO scandals (in German!) than the German media itself. This is not acceptable. It’s almost as though it has got to be intentional. There is no lack of interest among the public, maybe cautiousness among media owners. Based on threats we received from the EPO (with wrong name in one of the letters), the EPO bullies other publications critical of the EPO (German-sounding names in the recipient’s template). We have more evidence that serves to reinforce a SLAPP culture under Battistelli, whose Vice-President has a history (proven track record) doing this for years in Croatia. Baseless legal threats induce self-censorship. Don’t forget that the contract with FTI Consulting targets Germany in particular. “Battistell & Clique must be stopped,” one reader told us, “and brought before court (like Volkswagen and other gangsters. Mafia).”
The EPO was covered quite widely in Dutch media this past week, and it’s not good news for Battistelli. But where was any of the German media?
Here is one new article from NRC. To quote the Dutch text: “De bedrijfscultuur bij het Europees Octrooi Bureau (EPO), gevestigd in Rijswijk, is nauwelijks verbeterd. Dat blijkt uit een brief van staatssecretaris Martijn van Dam (Economische Zaken, PvdA) aan de Tweede kamer. „Er is sprake van een wij-zij cultuur, gebrek aan wederzijds vertrouwen tussen management en personeel en een gebrek aan gedeelde waarden”, schrijft Van Dam. De kritiek van vakbond SUEPO, die de helft van het personeel vertegenwoordigt, is dat de Franse EPO-president Benoît Battistelli een autoritair bewind voert. In strijd met een resolutie van de raad van bestuur is in Rijswijk onlangs opnieuw een vakbondsbestuurder ontslagen, bevestigt Van Dam. De Hoge Raad besluit in januari of het EPO als internationale organisatie „immuun” is voor het Nederlandse arbeidsrecht.”
“Same story as this but shorter,” Petra Kramer told us about it. “Van Dam wrote a letter about EPO to the House.” We have already published Kramer's translation of the longer story.
Another large news site in Dutch covered these events a few days ago. To quote: “De hervormingen bij het Europees Octrooibureau (EOB) moeten worden voortgezet. Er zijn goede vorderingen gemaakt, maar er is nog te veel niet goed geregeld bij de instelling.”
And here is yet another new article in Dutch. We welcome translations.
Even some IP Kat comments mention the Dutch, e.g.:
It is tale telling that Ms Esther Ouwehand from the Dutch Animal Party has to take up the cause of the endangered species – the officials of the EPO. They are beyond hope, like the elephants
“The EPO was found guilty of infringing Human Rights by a second instance Dutch court,” a provocateur is being told in another comment:
@Zbrox:
The EPO was found guilty of infringing Human Rights by a second instance Dutch court. The case is now pending at the highest court.
You mention money, working conditions, etc. Do you really believe this entitles the EPO to infringe on Human Rights?
@Dissenting Opinion:
You somehow missed the point that moving the Boards is pointless.
Increased appeal fees will render the European Route very unattractive and pave the way for abuse from the part of the EPO/the examiners. The future of the UPC is uncertain, and certain EP member states are not and will probably never be members of the UPC (e.g. Switzerland, Turkey).
Please, cool down your emotions and consider carefully what you intend to post.
Regarding the UPC, we have a lot more to say about it. A petition against it may be on its way very soon.
The following new comment mentions the “Dutch Press”:
An AC storm is brewing! …
It is becoming more apparent to the outsider that we see in the EPO a more systematic use of staff rep dismissals instead of an isolated incident or coincidence as stated by the VP1 earlier in the year and in the Dutch Press. This is a clear indication for a toxic management style at work and EXTREMELY WORRYING!. Additionally the working methods of the Investigation Unit and the need for excessive security measures has been unprecedented and its financing for 2016 unexplained.
Where’s the German media? Pretending nothing happens? Even though the latest ‘action’ is centered at The Hague, certainly it’s of relevance to Germany. Heck, even the British press covers it (more and more regularly).
Frustration among Germans about this media blackout sometimes relates to or gets compared to “political correctness” censorship (on racial/religious themes) in the German media, but this one is purely financial, not fear of offence.
“I kindly ask you now to contact the GERMAN leading magazine DER SPIEGEL,” one reader told us. It’s pretty amazing that these large publications rarely if ever mention the EPO, especially amid all this turmoil. “DER SPIEGEL has not yet covered this story of fraud, abuse of power, arrogance of power, arrogance and abuse of diplomatic immunity,” our reader added. “I want however to bring this specific management policies to the SPIEGEL, and to the courts: They (The EPO) are operating in a (in my view, illegal but apparently casted-into-imperfect-contracts) vacuum, and current world issues (refugees crisis, Turkey crisis, #Trumpgate, #dieselgate ….) are playing in favour of Battistelli & clique……….”
Why no coverage about the EPO?
We therefore ask readers, especially German-speaking readers, to contact their press, including Der Spiegel. Get them interested in the story. Coverage of this is long overdue. There are no valid excuses.
“The most suited lawyer would be WOLFGANG KALECK (Berlin),” our reader told us, “by incident, his office is very close to the Berlin Suboffice of the EPO!!! KALECK is also Snowden’s lawyer in Germany, in the CITIZENFOUR movie a short sequence is shot with Ben Wizner (ACLU attorney) in his office close to the EPO suboffice in Berlin…”
Here is how to securely contact Der Spiegel (“USE ENCRYPTION,” our reader stressed, “PGP key via this page“).
E-mail is investigativ@spiegel.de.
We have already contacted Der Spiegel (in English), but have received no reply. Perhaps if more people do the same (pressuring editors) they’ll actually start caring and maybe even ending this appalling media blackout.
Suffice to say, Battistelli’s unprecedented campaign of manipulating and muzzling the media is itself a massive scandal. The BBC was going to cover it but eventually spiked the story, perhaps proving the very point it was going to write about. █
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