05.10.16
Posted in Europe, Patents at 3:48 pm by Dr. Roy Schestowitz
Cross section of Team Battistelli: Željko Topić, Benoît Battistelli, and Elodie Bergot
Summary: A look at the ill aspects of EPO mistreatment of staff representatives, who are viewed as enemies (for saying the truth) rather than partners and are punished severely for exercising their rights
THERE IS an EPO protest tomorrow and we hope that thousands will attend to send out a strong message a month ahead of the next Administrative Council meeting, which would end the Battistelli reign if it actually wanted to end the crisis.
Staff is sick of the management and sometimes literally sick. This one new comment says: “Indeed in TH [The Hague] in particular one SUEPO official and central staff rep is currently being hit very hard with a cut of 100% of his remuneration since beginning 2016 by decision of PD 43 (Mrs Bergot the spouse of Battistelli right-arm Requena) who decided to disregard the from his physician duly established medical certificates. After having abolished occupational disease, Bergot is now abolishing sickness altogether…. Let us hope this will not generate a new drama (eg suicide)” (sixth in recent years).
“The “disciplinary sanctions and proceedings against staff or trade union representatives” in the above resolution,” Merpel wrote earlier tonight, “refers to the fact that three of the 10 staff representatives have been singled out for disciplinary proceedings, resulting in the sacking of two and the downgrading of another in January 2016. Merpel understands that two others are also facing disciplinary proceedings. One of the staff representatives who was dismissed, Elizabeth Hardon who is the chair of SUEPO Munich, additionally had her pension docked; however this further sanction was removed following an internal appeal.”
Well, we covered this before, also in Spanish. But the interesting bit there is the disciplinary proceeding against “10 staff representatives” (this is similar to the figure we’re aware of). Bergot must be rather afraid of any of the staff representatives (not from the yellow union that reportedly hangs out with her) because she probably got her job only because of nepotism and if outside scrutiny was to be applied, not only she would risk her job but also her husband and his old buddy, Battistelli, who put them there in the first place (building his circle of loyal drones).
Bergot was also mentioned in an internal communication not too long ago, in relation to how she put her paws on everyone’s medical records (as unbelievable as it may seem in a civilised country):
Confidentiality of staff medical data
In the January Gazette (page 20-21) the Office announced a restructuring of the medical departments, bringing the Medical Advisory Unit and Occupational Health Department under a common director, within the HR Department, i.e. under Ms Bergot. The Gazette article hails the restructuring as a “prescription for clarity and best duty of care”. As usual with the Battistelli administration, the reality is just the opposite:
(a) Because of their very different roles, having the Medical Advisory Unit (advising the administration in medical decisions) and the Occupational Health Services (meant to support staff) in a single unit is anything but best practice.
(b) The Occupational Health Physician is supposed to be independent. Having the Occupational Health Physician within the Personnel Department with Ms Bergot as his/her reporting officer is not to best way to guarantee independence.
(c) Since Dr Koopman left in summer 2014, the Medical Advisory Unit (MAU) is headed by a non-medical person originally recruited to VP4’s office and who is now reporting to Ms Bergot. This construct means that the confidentiality of medical data stored in the Medical Advisory Unit, in particular vis-à-vis the Personnel Department (Ms Bergot), is no longer guaranteed.
(d) Under the new structure, the same will apply for the Occupational Health Department. It seems highly likely that the current interim manager will become director of the newly created medical unit. The EPO’s current medical doctors will no longer have a managerial role but will be reporting to the Director and merely advising him/her as “medical experts”.
Such a structure would not seem legal in any of our host states. We suppose that this does not bother Mr Battistelli. But it should bother our medical doctors who – according to our understanding – are precluded from entering data in medical files held by the department if confidentiality cannot be guaranteed.
We already knew that some French people were getting their hands on confidential staff details, but not medical records. As a reminder see:
- Jacques Michel (Former EPO VP1), Benoît Battistelli’s EPO, and the Leak of Internal Staff Data to Michel’s Private Venture
- Europatis: “Turnover of €211,800 and Zero Employees”
- Loose Data ‘Protection’ and Likely Privacy Infringements at the EPO: Here’s Who Gets Employees’ Internal Data
- Summary of the EPO-Europatis Series
- Revolving Doors of High-Level EPO Management: Jacques Michel and the Questel Deal With the EPO
In our humble assessment, Bergot and her confidants (who are afraid of SUEPO) may be using “illness” selectively as a weapon against dissidents among staff or against ‘unwanted’ staff (not for technical but for purely political reasons), where illness itself can be induced by chronic abuse (cause for depression, breakdowns and so on).
Don’t make up with the management. It’s only getting a lot worse over time. A massive protest is needed tomorrow to reassure the Administrative Council that nothing has changed for the better and to also attract media attention, French (political) interventions, etc. █
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Posted in Europe, Patents at 3:18 pm by Dr. Roy Schestowitz
What next? A private bulletproof limousine for Sun King?
Summary: Battistelli is wasting huge amounts of money at the European Patent Office (EPO) because of his manic state of mind and more people start talking about it
Battistelli’s bodyguards obsession and paranoia is nothing new. This guy’s ego is bigger than even the whole of Bavaria and he sees conspiracies in everything around him. A king in his own mind, Battistelli exhibits many of the symptoms of megalomania and this megalomania costs the EPO (or taxpayers, or applicants) a great deal of money.
“This guy’s ego is bigger than even the whole of Bavaria and he sees conspiracies in everything around him.”Merpel has just published this new post about EPO affairs; a lot of it repeats or revisits information that is weeks or months old, but there are some new (to us) bits of information. Here is the last paragraph, which is most eye-catching:
In the meantime, reports of the contracts recently signed by the EPO refer to 6 contracts with 6 individuals to provide “Close Protection” because of “increased security requirements”, at a reported cost of €550,000 for 6 months. Merpel is astonished that senior EPO management are considered to be in need of such protection.
As one person points out: “Regarding ‘close protection’, the President himself related the problem of being a Frenchman in a significant position as head of an international organisation – this comment came after the various recent terrorist activities withinFrance (and Belgium). I wouldn’t assume that it relates to any internal matters.”
Another person says: “I am still astonished that the UPC is to be built on the foundations of the EPC, when the EPC requires reform to ensure independence of judiciary and executive.”
Well, we wrote about it earlier this evening (far too much EPO propaganda regarding the UPC these days, as agenda is more important than truth). We humbly hope that EPO examiners will join our fight against this antidemocratic effort to punish nearly everyone inside the EPO for the sake of corporations from across the Atlantic. This is neoliberalism at work.
“We humbly hope that EPO examiners will join our fight against this antidemocratic effort to punish nearly everyone inside the EPO for the sake of corporations from across the Atlantic.”As a side note, in relation to this older article from IP Kat, one reader told us: “That´s what appeared on IPkat. However, there´s much more to it. Several directors informed the examiners that Batistelli´s new initiative, Early certainty from search, is budgeted for a loss. A loss that may be as high as 400 million EUR!”
“I can´t provide more information now,” the reader said, “but maybe you could ask a question about this. I´m sure that other EPO staff could contribute.”
Having already received some valuable leaks we hope that someone will get in touch and provide information about this. █
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Posted in Deception, Europe, Patents at 2:36 pm by Dr. Roy Schestowitz
They want everyone to believe that nothing can stop the antidemocratic UPC
Summary: The Unified Patent Court coup, or the effort to push the unitary patent into Europe (using all sorts of different names and false claims), is progressing nicely if the self-fulfilling prophecy attempts are to be believed
WHENEVER we write about technical problems with the EPO we foresee it adopting the low standards of the USPTO (in terms of examination), which may also mean software patents in Europe. One emerging tactic for bringing about software patents is FRAND, which was mentioned in the previous post. Another is the UPC, which just like TPP threatens to bring software patents into Europe (the technicalities of this process were explained here many times before, including yesterday).
The Mirage of Appeals and/or Oppositions (for the Rich)
One problem we have is lack of information about the UPC. As we put it earlier this year, "The Media is Still Awash With Unitary Patent (UPC) Misinformation" and this is still the case. It should not be surprising given the fashion in which EPO officials and European patent lawyers habitually spread deceptive claims. NLO currently repeats EPO lies/spin regarding so-called ‘results’ [1, 2, 3] or other such statistics that are not complete. To quote: “Opposition before the European Patent Office (EPO) is a powerful tool for challenging the validity of a granted European patent. It is a way of obtaining a central decision of a technically qualified board that applies in all countries in which the patent is valid, thereby saving on litigation costs before individual national courts. Opposition success rates are high. In its most recent annual report (2015), the EPO revealed the chances of having a patent revoked (31%), maintained in amended form (38%) or maintained as granted (31%); 69% of oppositions resulted in a modification in the scope of protection of the challenged patent.”
This is similar to PTAB in the US (inter parte reviews), but this overlooks the fact that this process is expensive and laborious. Small patent developers, for example, have neither the time/money nor motivation to pursue such a process. This means that this status quo remains heavily biased and thoroughly tilted against SMEs. Moreover, consider the UPC’s likely impact on boards; they could soon be rendered obsolete.
Pretense (or Self-Fulfilling Prophecy) of Italian UPC Ratification
Now, consider what we wrote yesterday about Italian rumours regarding the UPC. The EPO, based on today’s marketing, wants everyone to believe that UPC is good. It’s not. We wrote about the UPC earlier this month in order to shed light on escalation in such propaganda tactics and now we see even WIPR acting upon hearsay, basing an entire article on patent lawyers who have an agenda and are thus not exactly objective a source for this, as we explained the other day. “According to Trevisan & Cuonzo lawyer Valerio Meucci,” wrote the author to a large audience, “the minister of foreign affairs and international cooperation, Paolo Gentiloni, proposed the approval of the draft bill, which the government accepted.”
This is a big mistake (if true at all). Italy opposed this for more than half a decade and there were good reasons for this. Some pro-patents people are now spreading this rumour around (they deny bias even though they describe their Twitter account as “Follow us for latest news and developments on European patent law and key milestones on the road to the Unified Patent Court”) and one person wrote: “#Italy takes step to ratify #unifiedpatentcourt agreement http://bit.ly/1WUZG3a #upc #ratification”
Based on cited articles [1, 2], there is now a press release. To quote one author’s account of it: “According to the official press release, Italy’s ratification of the Unified Patent Court Agreement will help to fight the entry into the European Union of counterfeit goods.”
But this does not actually imply ratification and the press release tells an outright lie, as was the case with TPP and TTIP. This mirrors the recent trend of so-called ‘trade’ deals, which are shrouded in secrecy and benefit from misleading press coverage (if any at all).
UPC Bad for SMEs
The UPC would work against SMEs, even based on a poll conducted by sites which target patent lawyers and other such maximalists. To quote Nordic Patent (connected to Kongstad): “The polls are in, a majority of @ManagingIP followers think the #UPC and #UnitaryPatent are bad for European #SMEs.”
Here is what Managing IP (MIP) wrote: “Indeed: 56% say #UPC #UnitaryPatent bad for SMEs in Europe. We will do a more comprehensive survey later this year.”
“What’s needed is not “a more comprehensive survey” but a survey that does not ask the MIP choir,” I told them, to which they replied with: “The MIP choir has a pretty broad spread of voices, as it happens!”
We don’t truly think so, but nevertheless, it sure seems like even MIP readers admit that the EPO’s claims about UPC being good for SMEs are lies.
More self-Fulfilling Prophecies and US Hopefuls
Based on this tweet, UPC is already here. But it’s not. To quote: “Technical teaching for #patent judges. And will the views of the #UPC technical judges have too much weight?”
“Will”? Maybe they mean would. The UPC is not even here yet. To quote what this is based on: “Does this look a bit like what we expect from the long-anticipated Unified Patent Court? The UPC will employ about 50 technical judges alongside a similar number of legally qualified judges.”
“The UPC will employ” is wrong. The UPC, if it ever became a reality at all, would do all sorts of things, but given the atmosphere of propaganda (see the SME propaganda above), one shouldn’t believe anything at all. Watch how US patent lawyers hold an event about the UPC in the US. They seem to know who the UPC is for and it’s not for Europeans. SMEs from Europe won’t fly to the US to attend such a conference, one of several such US conferences sponsored by the EPO's PR firm (which just ‘happens’ to be a US-based firm).
Patent lawyers in the US promote and celebrate the UPC. What does that tell us about who benefits? █
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Posted in America, Australia, Europe, Patents, RAND at 1:37 pm by Dr. Roy Schestowitz
Corruption and greed have become embedded in this whole system
Composition of [1, 2, 3, 4]
Summary: A critique of some patent injustices and the reasons why scientists are sacrificed for the benefit of revenue-maximising managers and their lawyers/lobbyists
Cory Doctorow, citing his EFF colleague, says what an Australian Commission has found regarding software patents. It’s strongly against them. It’s a subject which we covered here before [1, 2]. “The report,” Doctorow writes, “which was commissioned in part to investigation the codification of fair use in Australian copyright law, condemns virtually the whole edifice of Australian IP law. It calls for shorter copyright terms, more flexibility for copyright users, stricter criteria for granting patents, tightened rules and shorter terms for software and business-method patents, and more.”
“It seems as though each time there is evidence-based research into this subject the outcome says software patents are bad.”The EFF’s post says they “wrote about a discredited industry report that spread misinformation about the supposed costs of Australia adopting fair use into its copyright law. That document, commissioned by media and entertainment giants, had been written in anticipation of a recommendation for the adoption of fair use by the Australian Productivity Commission, a government agency tasked with improving Australia’s capacity for production and innovation.”
Further down it says: “Restricting the availability of patents for software and business method inventions, which are an impediment to further innovation. As regards software, the Commission notes that software development cycles of around 5 years are far shorter than the 20 year term of protection granted by patents, and that other incentives for software development (among them copyright) also exist.”
It seems as though each time there is evidence-based research into this subject the outcome says software patents are bad. Europe came to the same conclusion a very long time ago, but the EPO conveniently (for its own gain) ignores the law. There is now a new software patents loophole in the EU, as Dr. Glyn Moody showed last month. Yesterday he had more to say about that:
A couple of weeks ago, I wrote about a disturbing aspect of the European Commission’s proposed Digital Single Market: the fact that “ICT standardisation requires a balanced IPR [intellectual property rights] policy, based on FRAND licensing terms.” That’s a problem, because FRAND licensing is inherently incompatible with open source.
As well as generating a fair amount of interest here on Ars, the article seems to have provoked some discussions in the wider open source community, and inside the European Commission too. Given that interest, and the absolutely key nature of this issue, I thought it would be worth exploring it a little more deeply, not least because there have been some important developments in the last two weeks, including a way for Ars readers to help stop open source being locked out of EU standards.
First, it’s probably a good idea to summarise why FRAND, which stands for “fair, reasonable, and non-discriminatory,” is a problem for open source. Put at its simplest, licensing terms can be totally fair, quite reasonable, and absolutely non-discriminatory and yet impossible to implement in free software.
For example, a patentholder might think they are being super-kind by requiring a per-copy licence payment of just €0.001. And for traditional software, that might indeed be generous. But consider what happens with open source code, which by definition can be copied and shared freely as many times as you like. Since there is no way of knowing how many copies have been made, it’s impossible to pay even that “reasonable” €0.001 per copy. The only licensing fee that works in this context is zero—and even then, it’s not guaranteed that the licence will be compatible with free software. For example, there may be some other limitations on use, which aren’t allowed for open source.
What is needed is not just “royalty-free” licensing, but “restriction-free.”
[...]
The other case concerns the open source giant Red Hat, and how it settled a patent dispute with a company called Firestar. What is remarkable about this deal is that Red Hat not only acquired a licence for itself, it obtained it for everyone else in the open source community, upstream and downstream from Red Hat. In other words, it effectively took out a patent licence for the open source world.
Again, some have pointed to this as an example that proves that paying patent licences is perfectly compatible with open source; and once more, that’s not true. First, this solution was only possible because Firestar agreed to provide this blanket licence for the open source community: the fact that it had never been done before shows how exceptional that was. For companies that offer FRAND licensing, there is no reason at all why they would have to follow Firestar’s example.
“This is IAM doing its usual routine trying to urge companies — even in China — to pursue more and more patents/patenting obsession.”It is not too shocking that lobbyists for software patents get their way in spite of what scientists and programmers are saying. The lobbyists never grow tired and they are backed by wealthy corporations like IBM. There is now a push for new taxes in the embedded Linux space (increasingly characterised using the silly buzzword, “IoT”). “If demand for connected devices does prove durable,” IAM wrote, “then Chinese appliance makers could be big winners – and so could patent licensors. But the big Chinese players are likely not finished spending money to beef up their patent positions in the hopes of easing their royalty burdens.” This is IAM doing its usual routine trying to urge companies — even in China — to pursue more and more patents/patenting obsession. In Europe they encourage companies to pursue patents even in domains that are out of reach, e.g. software, as in the US patent system it is growingly a challenge (inevitably, they cannot just snub the courts eternally). This new article from Robert Sachs says: “On May 4, the USPTO issued a new memorandum for patent examiners, “Formulating a Subject Matter Eligibility Rejection and Evaluating the Applicant’s Response to a Subject Matter Eligibility Rejection” (“Examiner Instructions”) along with a new set of five example claims, this time in the life sciences and chemistry arts. The Examiner Instructions are a positive step forward in refining the examination process, but leave open many questions.”
A notoriously corrupt court, CAFC, is where software patents came from in the first place (several decades ago) and it has just been brought up by Patently-O in relation to the Patent Act. “The Federal Circuit created the rule of automatic assignment through agreement without any basis in the Patent Act,” Patently-O says and to quote some bits: “The core problem is that the court has ignored the Erie doctrine. Under the Supreme Court’s 1937 decision in Erie v. Tompkins, a federal court ruling on a matter of state law under its diversity jurisdiction must apply the law of the state from which the dispute arose. Which state law to apply is a matter of choice of law principles. What the federal court cannot do is create its own federal common law in lieu of the state statutory or common law. As the Court affirmed in Butner v. United States, 440 U.S. 48 (1979), the Erie doctrine applies to a court’s supplemental jurisdiction over state law claims attendant to a federal question. By creating its own federal common law of contracts, the Federal Circuit reveals a fundamental error in its understanding of the federal court system. [...] The case of conflicting patent assignments bears some similarity to the law on intangible future interests in creditor-debtor law. Both entail rights in property that has yet to come into being. The main lesson from creditor-debtor law, which is largely a matter of state law, is that many interests are implicated and therefore simple rules are not satisfactory. The Federal Circuit has arguably adopted too simple and misguided a rule in the Filmtec. The Supreme Court has confounded the error in the Stanford decision by ignoring the issue of automatic assignments. One way to correct course is by granting Shukh’s petition for certiori and restore the proper balance between federal patent law and state commercial law.”
“We regret to say that a lot of laws, practices, policies etc. around patents are still corrosive and this is caused by systemic corruption.”This may seem like an injustice because it is. A lot of patent law in the US is completely unhinged from sanity, evidence, facts, and justice. The other day we wrote about how NASA had hoarded a lot of patents; it should not have patents at all (taxpayers pay NASA to explore space, not to acquire patent monopolies) and it gets worse when NASA gives these to private hands and sells them to trolls. Yesterday we found 31 articles about NASA’s latest patent PR, but not a single decent article which actually put claims to scrutiny and did an actual investigation [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31].
We regret to say that a lot of laws, practices, policies etc. around patents are still corrosive and this is caused by systemic corruption. Many countries are negatively affected by this. █
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Posted in IBM, Patents at 1:03 pm by Dr. Roy Schestowitz
When products aren’t selling those who have amassed patents weaponise them and tax the rivals’ products
Photo source (modified slightly): The 10 Most Powerful Women in Technology Today
Summary: Groupon, which has come under a software patents attack from IBM, strikes back and spin sites like IAM keep denying that the term “patent trolls” means anything at all
EARLIER this year we chastised IBM for attacking companies using software patents. What became mainstream news today is “Groupon counters IBM over software patents.” We found many articles about it this morning [1, 2, 3, 4, 5, 6, 7, 8] and they indicate that IBM’s victims are fighting back. IBM’s ‘blowback’, so to speak, did not sink the stock or anything like this [1, 2], but surely this will generate negative press for IBM.
“We don’t call IBM a “patent troll”, but some pundits do (John Dvorak for instance called them the biggest patent troll).”When thugs like IBM attack using software patents (whilst actively lobbying for them) they essentially put pressure on other companies, including those not enamoured with/fond of patents, to file for ‘defensive’ patents, perpetuating the problem. Now that IBM is openly attacking legitimate companies using such patents (and surely extorts others) one can hope that IBM will go bankrupt fast, or alternatively appoint a new CEO who doesn’t choose to be a bully. Some pundits now call IBM a "patent troll", which definitely harms IBM’s reputation and ruins the brand.
If anyone among our readers chooses to cancel a contract with IBM (one probably should) or refuse/reject their marketing people, tell them it’s due to patent aggression as this can definitely help change their policy. Looking for someone to blame for IBM going rogue, lobbying for software patents and attacking legitimate companies using software patents? Blame Manny Schecter as well, not just the CEO. He’s the company’s patent chief and he has been rather outspoken as of late against any nation which rejects software patents.
We don’t call IBM a “patent troll”, but some pundits do (John Dvorak for instance called them the biggest patent). Some also call Yahoo a potential “patent troll”, so IAM — partly funded by patent trolls — attacks them. To quote IAM: “While we wait to see how potential acquirers value the IP, some in Silicon Valley are getting worked up about just what might happen to those patents. Last week the well-known tech journalist and author Steven Levy published a piece on his Backchannel blog which asked, “Will Yahoo become a patent troll?””
“Microsoft even has a standalone patent troll entity called “Microsoft Licensing”, putting aside all sorts of satellites and other patent trolls is uses to blackmail rivals.”It’s not news that IAM is a trolls denialist. To quote the concluding paragraph: “There will no doubt be many more column inches – on this blog and elsewhere – written on the Yahoo sale before it reaches its conclusion. Hopefully it will give members of the patent and investor communities an opportunity to discuss just how a public company – failed or otherwise – should properly value its intangible assets particularly in the current climate. But please, whatever happens, lets leave the troll moniker out of it.”
As we have seen in the case of Nokia after Microsoft had hijacked it, Nokia patents could be passed to patent trolls who later also paid IAM (literally, the same troll in the case of MOSAID). In today’s IAM output one can also see/learn that it has “been widely reported in Chinese-language (and, increasingly, English-language) media over the past few days that Huawei may be receiving hundreds of millions of US dollars in patent licensing fees from Apple.” Given what Nokia has done to Apple and what Apple has done (and is still doing) to many Linux-centric companies, it’s hard to find any sympathy for any of these companies. They put patents before products as time goes on and sales of actual product are harder to make (Apple has suffered a significant decline recently). While we never called companies like IBM, Yahoo, Nokia or Apple “trolls”, some people do call them that and to a certain degree it’s indeed trolling given how they position themselves. Microsoft even has a standalone patent troll entity called “Microsoft Licensing”, putting aside all sorts of satellites and other patent trolls is uses to blackmail rivals. █
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05.09.16
Posted in Europe, Patents at 5:24 am by Dr. Roy Schestowitz
Another TTIP- or TTP-style behind-closed-doors agreement which infuriates those potentially affected (once they actually find out about it)
Summary: Position paper from a legitimate (not fake) group of SMEs blasts the Unified Patent Court (UPC) for being little more than a conspiracy of powerful businesses and other opportunists to work around the law, misrepresent SMEs, and undermine Directive 2009/24/EC (effectively a ban on software patents)
EARLIER this morning we wrote about the UPC in relation to misleading new propaganda from patent lawyers. The EPO has been lying to everyone, insisting that the UPC is legitimate and that it’s somehow “for SMEs” when the reality is exactly the opposite, as a recent scholarly paper about SMEs served to show. Patent lawyers who play along with the EPO’s propaganda are doing a lot of damage, but then again, remember that it’s “damages” from which they profit. They want patent war. The more, the merrier. As for the EPO, it now pays obscene amounts of money to a PR firm from the US, which in turn pays to organise UPC propaganda events in the US (definitely not for European SMEs). It takes extreme gullibility/ignorance to fail to see what’s happening here.
“It takes extreme gullibility/ignorance to fail to see what’s happening here.”When talking about SMEs we must remember that there are fake (AstroTurfing) lobbying groups of Microsoft, pretending to be fronts of SMEs (e.g. Association for Competitive Technology), but European Digital SME Alliance is not a fake one (members listed at the bottom of the statement below). As the statement states clearly: “The European Digital SME Alliance aims to ensure that ICT SMEs get talked to rather than just talked about.”
The latter is what has been happening for quite some time. We mentioned this. The European Digital SME Alliance is based in Brussels and Benjamin Henrion, who is also based in Brussels (the EPO increases/maintains lobbying presence there), paraphrased [1, 2] the European Digital SME Alliance as saying “An EU wide patent system should be based on EU law and not on an international agreement [...] UPC rules of procedure are illegal, undemocratic, no parliaments, even unconstitutional in DE” (not exact words).
Here is the statement in full, extracted and edited based on the original PDF:
European Digital SME Alliance
4 April 2016
Position Paper on Agreement on a Unified Patent Court
Insufficient legal protection for digital SMEs
The European DIGITAL SME Alliance is concerned that the Agreement on a Unified Patent Court (UPC) will undermine the legal protection of software developers against lawsuits based on possibly invalid software patents.
Under this agreement, companies may be convicted for an alleged patent infringement without first proving whether the patent in question is valid or not.
Threats to digital SMEs
The European software market is loaded with tens of thousands of software-related patents1. Patents can cover several features in a computer program. For small and medium sized software developers it becomes increasingly difficult to avoid those patents by using alternative means. The existence of software-‐related patents is per se questionable: software is sufficiently protected directly or indirectly by the copyright law for computer programs under Directive 2009/24/EC.
More in general, the validity of software patents is quite uncertain when looking at the overall patent collection. More than 50 % of all oppositions or nullity procedures against software patents lead to a partial or total revocation of patents2. Thus, there is no basis for trust on the reliability and completeness of the patent granting procedure.
All SMEs in the software sector can be accused of patent infringement and receive an injunction by a court. This poses a constant threat to the companies. The defence against a patent infringement lawsuit is costly and can take years. This situation is worse in countries like Germany, where the proceedings for patent infringement can lead to an injunction even though the lawfulness of the patent in question has not yet been determined. Injunctions
_______________
1 The search for patents in the German Patent and Trademark Office containing the phrase „computer program“ in the patent claims led to 20.278 Hits on 10.11.2015.
2 http://www.epo.org/about-‐us/annual-‐reports-‐statistics/annual-‐report/2014/statistics/searches.html: In 2014, in opposition procedures at the European Patent Office in 31% of the cases, patents were totally removed and in 38% of the cases at least partially removed
force companies to withdraw their product from the market. Years after such injunction, when the SME has accumulated huge losses, a court may judge invalid the patent in question. Hence, companies that own large patent portfolios can use the threat of patent infringement lawsuit to undermine the competition of SME software developers in the market.
Creating a long-‐lasting legal uncertainty
According to the Agreement on a Unified Patent Court, when ruling on an alleged patent infringement, the local and regional chambers of the Unified Patent Court will be empowered to decide in their own discretion, whether an objection for nullity of the patent shall be taken into account. The chambers will have different options:
(a) They can decide about a counterclaim for revocation together with the question of patent infringement;
(b) they can suspend the patent infringement process until the nullity proceeding is ruled or
(c) they can decide about a patent infringement without considering the question of nullity.
Thus, the agreement fails to establish a legal precedence for the clarification of the validity of patents. Should the agreement come into force, it would extend the German approach of a conviction without prior clarification of the legal situation to all participating countries. Worryingly, the choice of an international agreement as operational tool will make it very difficult to review the content of the agreement over the next decades, thus worsening the consequences and perpetuating the damage to SMEs in the digital sector.
Unconstitutional rules of procedure
According to the agreement, an administrative committee composed by representatives of the signatory countries will be alone responsible for setting up the rules of procedure of the new Unified Patent Court. The rules of procedure deal with numerous matters of the procedure that concern the procedural rights of the parties.
The definition of this set of rules that regard the basic rights of the parties without democratic legitimation by the parliaments is, for countries like Germany, even unconstitutional.
Fragmentation of legal positions
Croatia, Poland and Spain are not signatories of this agreement.
The requests of the European DIGITAL SME Alliance
Digital SMEs need a European patent system that protects them from the attacks of owners of extensive portfolios often based on unlawful software patents. For small and medium sized software companies it is essential that the patent system prevent the implementation of questionable patents. Thus, the procedural law should ensure a complete examination of the patent, prior to the decision on conviction for an alleged patent infringement. An EU wide patent system should be based on EU law and not on an international agreement.
About the European DIGITAL SME Alliance
The European Digital SME Alliance (former PIN SME) is an association formed in 2007 to represent the interests of Europe’s ICT SME sector. Currently ten national and regional associations are members, representing tens of thousands ICT SME companies in Europe. The European Digital SME Alliance aims to ensure that ICT SMEs get talked to rather than just talked about. It provides a voice for ICT SMEs in the policy and business arenas and is already represented in several EU expert groups and taskforces.
Membership
BASSCOM – Bulgarian Association of Software Companies (BULGARIA), CNA -‐Comunicazione e Terziario Avanzato, Confederazione Nazionale dell’Artigianato e della Piccola e Media impresa (ITALY), UKITA, United Kingdom IT Association (GREAT BRITAIN), CONETIC – Confederación Española de Empresas de Tecnologias de la Información, Communicaciones y Electrónica (SPAIN), BITMi – Bundesverband IT-‐Mittelstand (GERMANY), GPNI – Groupement Professionnel National de l’Informatique (FRANCE), it-‐forum midtjylland (DENMARK), SwissMedia – Swiss IT & Multimedia Association (SWITZERLAND), Belgrade Chamber of Commerce, IT Association (SERBIA), Vojvodina ICT Cluster (SERBIA), STIKK – Kosovo Association of Information and Communication Technology (KOSOVO), Balkan and Black Sea ICT Clusters Network (ALBANIA, BOSNIA AND HERZEGOVINA, BULGARIA, GREECE, MONTENEGRO, ROMANIA, SERBIA, KOSOVO, TURKEY, REPUBLIC OF MACEDONIA, UKRAINE)
The UPC basically mirrors what we find in TPP and TTIP. It’s a corporate attack on democracy itself and it is falsely advertised to the public (if it’s advertised at all). Protests may be needed and more antagonism from those affected is now imperative. █
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Posted in Europe, Patents at 2:35 am by Dr. Roy Schestowitz
Battistelli and his ilk hope to keep it under the wraps, without any public backlash/flak like TPP and TTIP have received
Summary: The coup d’état of the EPO, large applicants (massive global corporations), and their patent lawyers continues with shameless lobbying, new unsubstantiated rumours, and the self-fulfilling prophecies strategy (to depress the opposition and lower its morale)
THERE is virtually no open debate or investigative journalism in the corporate media about the UPC (when it’s mentioned at all, if it’s ever mentioned, it’s corporate propaganda), the corporations-leaning deal which patent lawyers and their largest clients are crafting and drafting with help from clueless politicians, national patent offices, and EPO officials such as Battistelli. This is a travesty because if the public knew about it (especially the broader impact), there would be riots and protests in the streets.
“This is a travesty because if the public knew about it (especially the broader impact), there would be riots and protests in the streets.”While patent law firms keep us distracted with puff pieces like “Protecting software inventions in Europe” or “EPO developments on patentability of biotechnology inventions” (April 11th [1, 2, 3]) much bigger things are happening (not the openwashing of UPC, as seen in [1] below), which can serve to legitimise software patents in Europe and also bring patent trolls to the entire continent and beyond it (Britain gets them already).
Proponents of software patents already start to insinuate that it will be easier to be granted software patents in Europe than in the Unites States. As one of them put it a few days ago [1, 2, 3], “Message from the EPO to US Software Applicants: Give us your rejected, your software applns in 3600 yearning to be granted; The Alice-rejected inventions of your teeming shore, Send these, the disrespected, tempest tossed software inventions to us: We lift our lamp beside the Golden Door to issuance and validation in Europe.”
“What about the option of blocking it altogether?”Sadly, under the regime of the clueless Battistelli there is already some truth to it and this closer look by Merpel suggests that a wholly horrible package is expected to come with UPC. To quote: “Of course there are a number of things that need to be resolved as the clock starts ticking down on the UPC opening its doors, the Code of Conduct being one of them. However, while there is still time, it is important that the uncertainty and issues outlined in CCBE’s letter should be fully considered and addressed, with the current draft being a launching off point. Further, Merpel hopes that the current draft is circulated more widely so that the larger European profession, who will be bound by the Code, is given an opportunity to comment.”
What about the option of blocking it altogether? And why does Merpel assume that this is inevitable and that “the clock starts ticking down on the UPC opening its doors”? There are all sorts of great barriers which remain. The Bristows colleague of Merpel, a longtime proponent of software patents and the UPC, would probably have Merpel and others aware only of the ‘good’ news about UPC, not the rest. This booster has been meddling in UPC affairs for quite a while, this time omitting any of the negative publicity around UPC and instead latching onto this speculation from Italy. Italy opposed this package vigorously and rejected it strongly half a decade ago when it was called “EU Patent” [1, 2, 3]. It still hasn’t consented to it. “After a sunny lunch this afternoon,” the Bristows employee writes about herself in third person narrative, “the AmeriKat returned to her desk to find some very exciting news from her friends at leading Italian IP firm, Trevisan Cuonzo, about the status of Italy’s UPC ratification process.”
They would wish so, wouldn’t they?
“They hope that by giving the impression that nothing can stop the UPC the UPC will eventually defeat the antagonists, having lowered their morale.”So a law firm hears from another law firm about something and now they hope to give Italians the impression that their language and interests are being abandoned and there’s nothing they can do to stop it? Seems like yet another go at self-fulfilling prophecies. They hope that by giving the impression that nothing can stop the UPC the UPC will eventually defeat the antagonists, having lowered their morale. For shame. Those propagandists have been doing a lot of damage and Bristows played a significant role in this propaganda for quite some time, often taking advantage of IP Kat as a platform (because almost nobody bothers with Bristows’ own platform, even when they opportunistically — for marketing purposes — call it “Bristows UPC”).
Here is one comment posted in response to the rumour mill:
My guess is that the Netherlands will try to be with the first implementing countries at all cost… It passed the stage Italy currently is in months ago, and presented the agreement (well: the law approving the UPC Agreement) to parliament 2 months ago and is currently busy answering the first round of written questions by the responsible parliamentary committee. The government also requested the legislation to be fast-tracked.
However, there seems to be trouble with the advice of the Council of State (Raad van State) on the implementing legislation. The implementing legislation was thus not accompanying the approval of the agreement, when it was presented to parliament (which was the plan from the beginning), and the government has requested additional advice from the Council of State on “a new European patent system” (which is very special).
My guess therefore: NL will be nr 13, but the implementing legislation will come later….
Well, it’s a de facto coup; the UPC keeps changing names, which makes effective public criticism difficult and also misleads/confuses the public. EPO officials are not traveling to nations that wish to leave the EU and push the UPC down their officials' throats to bypass the referendum (or equivalent process). Not a coincidence. Bristow wants London to become a patent litigation hub and many other patent firms also look after their own interests, irrespective of what the general public wants and deserves. Watch how the London-based IAM tries pushing a similar meta-industry (patent feuds) into Asia, making it sound like a contest again (preaching and shaming, not objectively reporting):
Authorities in Shanghai have made fresh calls for the city to become an IP centre in recent months. The plans include efforts to improve IP rights enforcement, in both the judicial and administrative spheres, which is surely a prerequisite to having any sort of transactional activity. But like past blueprints, it also calls for building an ecosystem for IP trading, for example by attracting services providers that can facilitate and advise on deals, and professionals with the requisite expertise. The head of the Shanghai IP Office says that an IP ‘trading centre’ will be established within the year.
For a long time, Singapore and Hong Kong have been the most prominent jurisdictions vying for the hub mantle. The Lion City’s efforts have been decade-long and wide-ranging, and resulted in significant changes to the IP environment; the drive has seen it introduce a positive grant patent system, train its own patent examiners and other IP professionals, and open up the market to competition from foreign patent agents. Hong Kong’s plans, by contrast, have been more narrowly focused on IP trading, premised on its combination of a common law legal system and easy access to mainland China. Malaysia joined the fray about three years ago, pledging $65 million towards an IP financing plan that emphasised the collateralisation of patents, especially by SMEs.
Asia has been a lot more pacific on the patent front, but patent lawyers in Europe and the US obviously want to change that. They profit from making a mess. IAM itself is more of an advocacy site (for patent trolls, lawyers etc.) and it previously used shame tactics to pressure European officials to adopt the UPC, as we repeatedly showed here. █
Related/contextual items from the news:
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Using Private Cloud and Drupal as a starting point together with small expert partners and agile management the new platform for the European UPC has been shaped to the exact requirements and quickly adapted while more needs surfaced. The only ready to use Open Source tool used has been Zarafa Collaboration Platform which integrated with the Case Management System will provide secure email, instant messaging, file sharing and video conferencing to the platform’s users.
The result is that, thanks to Open Source based platform and by working with SMEs, the UK IPO team has been able to deliver to the Unified Patent Court team the project earlier than planned and under budget.
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Posted in Australia, Patents at 2:07 am by Dr. Roy Schestowitz
Summary: Even though much of the Australian and the international media focused on copyright-related findings of Australia’s Productivity Commission, the findings against software patents continue to be mentioned to this date
At the start of this month and end of last month we wrote about an Australian recommendation to abolish software patents for good. Some corporate media came to cover it several days later (even over a week later), under the headline “Australian Gov’t. Body Recommends Banning Software Patents”. Here are the opening paragraphs:
Australia’s Productivity Commission wants to exclude business methods and software from patentable subject matter under that country’s laws.
The APC’s draft report on Australia’s “Intellectual Property Arrangements” called for a patent law amendment to explicitly exclude those types of inventions from patent protection.
There is a “clear case” to disallow the patenting of software and business methods because there’s evidence that patents in those areas don’t encourage new or valuable innovation, the draft issued April 29 said. What’s more, such patents can impede competition.
Having contacted some Australian activists against software patents about this, I was surprised to see that they hadn’t noticed, probably because the media mostly focused on other findings of the Commission, mostly copyright-related. Here are Peter Caporn and Rebecca Hembling from Wrays, an Australia law firm, mentioning this aspect somewhere towards the end of their new analysis:
Business Methods and Software (BM&S)
The Commission suggests that their newly characterised technology subset ‘BM&S’ should be specifically excluded from patent protection. Patents on this technology is said to be ‘unnecessary’, a conclusion bound to inspire a robust response. The Commission has adopted a narrow view of how ip relating to business methods and software is used and the impact it has. It will be particularly interesting to see if the reasoning set out as support for this draft recommendation survives the submissions that it will no doubt attract in response.
It sure looks like much of the media either missed or overlooked this one particular aspect of the findings, which is somewhat of a shame. If nobody notices or takes into account such input, will it have a lasting impact? █
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