02.08.15
Posted in Europe, Patents at 4:07 pm by Dr. Roy Schestowitz
Stay tuned for more material about Topić
Summary: An interlude calling for additional evidence and a roundup of things to come
FOLLOWING our coverage of the Ivan Kabalin case we intend to delve deeper into the corrupt affairs of SIPO, the Croatian roots of the EPO’s current (for now) Vice-President, Željko Topić. As opposition grows from within and outside the EPO, including some coverage from German newspapers, Danish papers etc. we don’t expect the EPO to last in its current form. It’s an utter turmoil and this isn’t due to anything other than bad conduct (if not misconduct) from the EPO’s management.
We recently received a lot of SIPO material by E-mail and we invite readers to add to our body of supportive evidence so that we can carry on shedding light on what Topić has been trying to suppress. If you choose to send material by E-mail, please consider using Tor or some other anonymising software for increased protection. The EPO's own Stasi Unit, for example, wrongly assumes that material comes from EPO staff. It has a track record of harassing people whom it views as detrimental to the management’s façade. █
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Posted in Site News at 3:36 pm by Dr. Roy Schestowitz
Summary: Another look back at what Željko Topić had been doing in Croatia before Benoît Battistelli made Topić his right-hand man in Germany
AMID swirling allegations that the EPO may have hired crackers or is actively attacking/vandalising sites that are critical of EPO management (“Coincidently,” said one commenter in IPKat, “the SUEPO website has been hacked last wednesday”) we deem it a good time to open another can of worms. It’s impossible to know if SUEPO’s site is another silenced victim because of EPO/Željko Topić criticism (like Stilin, whose case we highlighted in several older articles of ours), but let’s take some time to look at the case of Ivan Kabalin in Croatia. In PDF form we now have all the relevant documents, even in English.
“In case you haven’t got enough already,” says a source of ours, “there is a story about a Croatian engineer and inventor called Ivan Kabalin who developed an improved razor design and alleges that his patent was “stolen” by Gillette. Again this involves allegations of irregularities at the Croatian SIPO under Topić’s management. Unfortunately, we don’t have the full details of the Kabalin case, but there are some Croatian reports.”
Here is an article from 2007 and another from 2013, which strangely enough was removed (we don’t know why). The Web Archive still has a copy of the latter article, which is written in Croatian.
We have received an English translation of the second one of these reports (the removed one). It’s a long article from November 2013 where it is reported that Kabalin has filed a complaint with the EU Anti-Fraud agency OLAF. Here it goes [PDF with addenda]:
CROATIAN PATENTS WORTH BILLIONS – BUT NOT FOR THE INVENTORS!
EU accession has not brought any improvements in this area
Date: 16 October 2013
Author: Franjo Dobrović
Following Croatia’s accession to the EU this summer, many of our citizens hoped that this would lead to rapid and efficient changes, especially in relation to the judicial system with its multiple layers of corruption. At the beginning of September, the Croatian engineer Mr. Ivan Kabalin submitted a complaint to OLAF [the EU Anti-Fraud Office] in Brussels – via the Croatian Ministry of Finance. He requested an interim status report concerning Docket No. OF / 2005 / 0390. This case and a number of others, all of which share a common denominator, namely corruption, have prompted us to once again focus our attention on the problems relating to the field of intellectual property rights.
THE MINISTRY OF FINANCE ACTS AS OLAF’S POSTMAN
We contacted the Ministry of Finance for clarification and received confirmation of the authenticity of the request along with a note explaining that the case had been referred to the State Attorney’s Office and the Croatian Ministry of Internal Affairs. We were particularly surprised by that because the Ministry of Finance, together with its Antifraud Division (SSNIP) acts as a postman for OLAF providing mailbox facilities for the latter in Croatia. To be more precise, we quote from their official response: “Accordingly, OLAF does not have an office in the Republic of Croatia, so the SSNIP is main focal point for the exchange of information and coordination of OLAF’s activities in the Republic of Croatia.”
If that is so, the question arises as to why our citizen’s document was not forwarded by the Ministry of Finance to OLAF, but to Ranko Ostojic [the Minister for the Interior] and Mladen Bajic [the Chief Public Prosecutor].
In addition, the State officials used their reply to provide us with the following insight into their mission: “The Department for Combating Irregularities and Fraud (hereinafter referred to as the SSNIP) is responsible for the coordination of legislative, administrative and operational activities of the bodies in the AFCOS system, aimed at protecting the financial interests of the European Union, and, consequently, for direct cooperation with OLAF. The scope of SSNIP’s work is prescribed by the Regulation on the Internal Organization of the Ministry of Finance (Official Gazette 32/12, 67/12, 124/12, 78/13 and 102/13).”
CROATIA AS AN INTELLECTUAL COLONY
Mr. Ivan Kabalin’s request to OLAF relates to alleged irregularities and breaches of law at the Croatian State Intellectual Property Office (SIPO), which for many years was headed by the controversial Željko Topić. To remind our readers, Mr. Kabalin filed his innovative solutions with the then Central Bureau for Patents, as it was formerly called, i.e. what is now the State Intellectual Property Office. Kabalin specifically states that, apart from the aforementioned chicanery to which he and the Republic of Croatia have been subjected, there is plenty of publicly available evidence to indicates that the U.S. administration has been an active participant in the expropriation inflicted on both himself and his homeland.
While Mr. Kabalin hopes that his concept has not been irrevocably stolen from him for further industrial application, it must be noted that the state of which he is a citizen is apparently in no position to offer him any protection in this regard. The former member of the Croatian Parliament Pero Kovačević has asked the Croatian Government to comment on Mr. Kabalin’s allegations that the decision of the SIPO in this matter was unprofessional and irresponsible.
Mr. Kabalin patented a special razor which is known to the world today as the Gillette Sensor Excel, a product from which the U.S. company Gillette earns billions of dollars a year. The same invention is also marketed worldwide by the British company Wilkinson Sword while the true inventor is living in abject poverty near Petrinja.
Unfortunately, the Republic of Croatia has condemned itself to being an intellectual colony. In the interest of foreign exploiters, certain individuals have left the inventions of Croatian inventors devoid of any effective protection. At a time when technology rules the world and the number of inventors per capita puts the Republic of Croatia among the leading countries in the world in that field, the legislation in force results in a situation where patents are essentially worthless. Therefore it comes as no surprise that The Law School of the University of Zagreb has only recently introduced an elective course on intellectual property.
Apart from Mr. Kabalin’s case, a further reason for OLAF’s involvement in investigations in Croatia relates to a state institution of the Federal Republic of Germany – the German Patent and Trade Mark Office (Deutsches Patent- und Markenamt – DPMA) which some years ago in the context of international cooperation provided financial assistance amounting to tens of thousands of Euros for improving the documentation and computerization of the SIPO. However, it appears that the payment was remitted to the private bank account of the former SIPO director, Mr. Željko Topic. How the details of his private bank account found their way into the official correspondence and documents of SIPO and whether or not the error was ever corrected remains an unsolved mystery for the moment.
WHAT IS THE ROLE OF THE STATE ATTORNEY’S OFFICE?
Aside from Mr. Kabalin’s petition, our portal has received several documents from German sources which indicate a malfunctionining in the cooperation and coordination between our national authorities and international institutions. According to documents which we have obtained, it would appear that either the State Attorney’s Office (SAO) or USKOK have issued a document confirming that there are no criminal proceedings against the former director of SIPO, Mr. Željko Topić as all charges against him have been dropped. According to the information at our disposal, this is not correct because the County and Municipal State Attorney’s Offices in Zagreb are currently processing at least six pending criminal cases against Željko Topić.
So it seems that someone from the aforementioned State authorities responsible for conducting prosecutions improperly issued a document by which the compromised former SIPO Director maintains his current position at the European Patent Office (EPO), a European intergovernmental institution based in Munich. If this is the case, such a document could only have been signed by the Chief Public Prosecutor.
Against this background, the matter starts to assume the dimension of a criminal offence of abuse of office and authority specified in the Criminal Code as an offence against official duties. It is precisely because the SAO and USKOK failed to exercise proper control over the operations of the SIPO that individual citizens were forced to do the job that these bodies were under an official obligation to perform: i.e. to investigate and prosecute criminal offences which had been reported to them or of which they themselves had become aware in the course of their official duties.
This international scandal involving the suspicion of illegal actions on the part of the Chief State Attorney also brings the Republic of Croatia into disrepute. The rule of law is proclaimed as a matter of public interest and it deserves to be accorded priority over the interests of current President of the Republic or those of the Prime Minister or the presiding official of the SAO.
According to our information, proceedings before the European Court of Human Rights in Strasbourg which also refer to Mr. Topić’s bribing of the former Minister of Science in the Government led by the corrupt Ivo Sanader are still pending.
As long as the real culprits are not brought to account, i.e. those persons who have failed and who still continue to fail to take measures to prevent such irregularities thereby committing a grave and cumulative breach of official duties defined in the Civil Service Act as the offence of negligent performance of duty, conduct of this kind will continue to generate a profound sense of dissatisfaction among the citizens of Croatia. An even greater problem than those relating to the Croatian judicial system, seems to be the inaction of the administrative apparatus which, as a rule, is not held to account for its negligence. It is not sufficient to loudly proclaim the rule of law, this principle also
needs to be enforced.
The situation in Croatia was recently described in graphic terms by an American journalist:
“There is a country in the Balkans where the Government despises its citizens as inconvenient witnesses, where the laws lack legitimacy and where anarchy is the normal state of affairs.”
TOPIĆ UNDER INVESTIGATION BY THE SIPA*?
[* SIPA = The Bosnian State Investigation and Protection Agency]
In response to numerous media reports, the European Patent Office (EPO) carried out an investigation at the University of Banja Luka, with the aim of examining the allegations relating to the forgery of Mr. Topić’s M.Sc. degree. In his report (which is attached to this article), the EPO investigator Florian Andres claimed to have found nothing suspicious in the documentation or during his discussions with the Dean of the University Rector, Dr. Stanko Stanić. However, according to our sources in Banja Luka and Sarajevo, Dr. Stanić neither knows nor could have known anything about a possible forgery in the case of Mr. Topić’s “M.Sc.” university documents because he signs off thousands of diplomas in a purely formal capacity without going into the details of the documentation placed before him.
The trail relating to the potential forgery of Mr. Željko Topić’s university documentation leads from Banja Luka to Sarajevo. Why? Because the Faculty of Economics in Banja Luka was established by the Faculty of Economics of the University of Sarajevo in the 1970s. Coincidentally or not, the mentor listed on the degree thesis of Mr. Željko Topić [i.e. Dr. Boris Tihi] is a retired economics professor from the Faculty of Economics in Sarajevo who now works as an economic adviser in the Office of the Ministerial Council of Bosnia and Herzegovina, i.e. the government of Bosnia and Herzegovina. Our sources in Sarajevo close to the government reported that their current economic advisor can neither confirm nor deny that he acted as a mentor for anybody at the Banja Luka Faculty of Economics prior to 1990! Of particular interest here is the fact that Mr. Topić’s master’s thesis does not list the names of the committee members before which the controversial thesis was defended but only bears the name of the mysterious mentor from Sarajevo.
According to unofficial information, this matter is under investigation by the the State Investigation and Protection Agency of Bosnia and Herzegovina (SIPA) which is responsible for collecting and processing data of interest for the implementation of international and criminal law. It now looks as if the intrepid EPO investigator Mr. Andres may have to go on another official journey. But this time to Sarajevo …
Given that the EU and other international bodies are following this case with great interest, it can be expected that Mr. Željko Topić, M.Sc., will very soon become a major focus of attention for all those who take an interest in patent-related matters connected to the former Yugoslavia, but unfortunately in a negative sense.
THE TANGLED WEB BEGINS TO UNRAVEL IN GERMANY
Our claims are confirmed by information coming from German journalistic sources according to which EPO employees have in recent months approached members of the Bundestag based in Berlin who in turn have requested a written response from EPO President Benoît Battistelli. In addition, it seems that an investigative action into the case of Mr. Željko Topić, now a senior EPO employee, has been initiated by the German Ministry of Justice. Thus, our “Master” is accompanied by the strains of ZAMP music not only in the Republic of Croatia but also beyond its borders.
According to our sources, the EPO President Battistelli is currently mounting a vigorous defence of Topić. The explanation for this according to the unofficial information provided by our sources at the EPO in Vienna and the Hague is as follows. Topić faithfully carries out the orders of his master Battistelli as a coordinator of the EPO’s internal voting machine particularly in relation to the countries of the former Yugoslavia which make up a significant proportion of the member states in the decisionmaking body of this organization. So it seems that he literally co-exists with the EPO President in a harmonious symbiosis. In this capacity, he occasionally has the responsibility for inviting the members of national judiciaries to participate in “study tours” thereby becoming involved in a direct conflict of interest. Our portal is in possession of a list of persons who attended one of the aforementioned “study tours”. A tragic-comical aspect of this story is that cases related to intellectual property matters may soon land on the desks of these judges requiring them to decide on matters which may have some points of contact with certain persons from this Balkan saga and which have already been the subject of prior deliberation in some seedy Munich beer hall.
As can be seen, our “Master” is for the time being enjoying the benefits of the European Union. Indeed, he started to enjoy them long before normal Croatian citizens became full members of the EU’s enlarged family, especially when one considers his current salary which is estimated to be in the order of an astronomical EUR 15,000 per month.
Notice in the PDF’s first addendum (see the original PDF) just what Mr. Battistelli says in his strongly-worded letter to staff, alluding to a case that was recently dismissed and ruled in favour of Stilin and against Topić. This sure looks like some shrewdly-worded coverup and the above article makes mention of half a dozen criminal cases in Croatia, as we noted before. Topić is under heavy fire as judges too rule against him. The evidence is pointing in a direction that Topić’s endless litigation must be fuming over.
“This sure looks like some shrewdly-worded coverup and the above article makes mention of half a dozen criminal cases in Croatia, as we noted before.”“As you can see,” alleged our source, “this is an ongoing saga because the first of the above reports (untranslated) about Kabalin’s problems dates from 2007. By 2014, he doesn’t seem to have made any progress and has probably given up all hope at this stage.
“This seems to be typical of Croatia where the pendency times in the legal system are inordinately long. This is one of the major contributory factors protecting Topić so far – he can invoke the “presumption of innocence” because the lawsuits against him are stuck in the dysfunctional Croatian legal system.”
This is a SLAPP-like tactic for bullying or silencing opposition, usually opposition with pockets far less deep than the bully’s.
“We were informed by Vesna Stilin,” added our source, “that she still has a civil lawsuit pending against the first Director-General of the SIPO (Nikola Kopcic) who was dismissed from office in January 2002 due to an undeclared “conflict of interest” (see these documents [PDF] from a while back [PDF] as they are translated into English).
“Kopcic was (and still is) a senior partner in a law firm which was registered to act an authorised representative before the SIPO in intellectual property matters (while at the same time he was the Director-General of the SIPO!)
“In 2001, Kopcic was expelled from the Croatian branch of the AIPPI (International Association for the Protection of Intellectual Property) for bringing the organisation into disrepute (copy of the AIPPI document is available [PDF], unfortunately only in Croatian). Amazingly, even after his dismissal as SIPO Director-General he managed to secure a position as a representative of Croatia on the “Council of the Institute of Professional Representatives before the European Patent Office” until last year [PDF].
“He now seems to have retired or else he failed to get re-elected as he is no longer listed as a member of the current Council. We just noticed that Kopcic recently managed to get a position as a “Project Deputy Team Leader” on an EU-financed “IPR Enforcement Project” in Bosnia which runs from 2012-2015. See also the entry on his CV.
“Because Stilin was actively involved in trying to get Kopcic removed from office as Director-General of the Croatian SIPO in the late 1990s, he engineered her dismissal from the SIPO in 1999. She was subsequently reinstated as an Assistant Director in 2004 but crossed swords with Topić who got her dismissed again in 2008.
“According to Stilin, a civil lawsuit which she filed against Kopcic in 2000 is still pending before the courts in Croatia!!!
“Here are some of the comments which she made about that:
“In 2000 I started civil process against Mr. Kopcic/DZIV which is still pending: three judges and me suggested settlement between DZIV and me, but Mr. Topic was against it, so that’s why he wrote in a „press release“ that I „had been conducting a campaign against the DZIV for over 12 years.“
The biggest problem in accession of Republic of Croatia to EU, was a problem of duration of court proceedings. It is not a justice if you need to wait 14 years for first level court decision, as it has been in this case”
For those who are still confused about the Kopcic story we shall revisit this another day and provide more documents with English translations. There are many inter-connected stories at hand. It’s a banana republic, much like what the EPO is becoming. Benoît Battistelli brought quite a mess into the EPO and by choosing to defend this mess he becomes complicit. █
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Posted in Free/Libre Software, Security at 4:53 pm by Dr. Roy Schestowitz
Summary: Parasites that take advantage of public panic and lack of comprehension are occupying paper space, as usual
LAST WEEK we wrote about the overblown threat called/dubbed “GHOST” (all capital letters) by the company seeking to make money from it despite being only the third to discover it and knowing it was not much of a big deal. We have not yet heard about any major exploit, which pretty much can be said about the OpenSSL bug as well (this one too was discovered by two entities before a Microsoft-connected firm irresponsibly publicised it, giving it a name and a logo to sell its own services and spread FOSS-hostile FUD for many months to come). What unifies the GLibC and OpenSSL bugs is that they got “brand recognition” very quickly. It was like a marketing campaign rather than a non-alarmist discussion about security — something that non-technical/technically-illiterate journalists would surely fail at.
“As more stories are published in the media about big “hacks” (cracks) against large corporations we can’t help but feel that the media neglects to mention that Microsoft Windows — not OpenSSL or Bash, let alone GLibC — is usually to blame.”Days ago we saw the most FOSS-hostile IDG Web site becoming a platform of Black Duck, a Microsoft-connected firm that sells proprietary software by spreading and accentuating fear of FOSS. The article at hand uses bugs with “branding” to spook FOSS users while Black Duck, paying to publish this self-promotional press release on the same day, is still pretending to be an authority in FOSS.
The bugs with “branding” were also exploited by Veracode in this article (on the same day) and as Eric Lorenzo pointed out: “If businesses don’t update legacy software, often they will will have bugs fixed in later versions! Shock!”
“I wonder what percentage of businesses are using obsolete Windows without updates,” he added.
As more stories are published in the media about big “hacks” (cracks) against large corporations we can’t help but feel that the media neglects to mention that Microsoft Windows — not OpenSSL or Bash, let alone GLibC — is usually to blame. It not only sports back doors but is also badly designed and won't patch known critical holes. It is basically designed to be not secure.
When it comes to reporting on computer security, the corporate press has almost zero legitimacy. All it knows is brands and it is eager to promote corporate partners that piggyback those brands (like “heartbleed”) or stories (Anthem, Sony, etc.), claiming to be experts and offering remedies other than patches which were already issued and are free to apply by all. █
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Posted in Deception, GNU/Linux, Google, Microsoft at 4:25 pm by Dr. Roy Schestowitz
“Analysts sell out – that’s their business model… But they are very concerned that they never look like they are selling out, so that makes them very prickly to work with.”
–Microsoft, internal document [PDF]
Summary: Microsoft’s final plan/plot against software that everyone can share is infiltration and interference
SOME bribed journalists and so-called ‘analysts’ would try hard to make us believe that Microsoft is now an “Open Source company” (or something along those lines). This helps damage Free/Open Source software (FOSS) because it devalues the OSI-controlled brand and confuses less technical people who often make big decisions regarding procurement. We wrote many articles about it last year, e.g. when the UK decided to adopt FOSS and ODF; Microsoft tries to masquerade as both [1, 2, 3] — a chameleon seeking to warp its perceived identity so as to never lose a contract.
“This helps damage Free/Open Source software (FOSS) because it devalues the OSI-controlled brand and confuses less technical people who often make big decisions regarding procurement.”A couple of months ago Microsoft openwashed .NET, which remains a vector of patent lawsuits and is not even Open Source (only parts of it were to be made available at some later date). Microsoft is really trying hard to squeeze PR out of these lies, including a repetition of the lies as in this new puff piece that revolves around Gianugo Rabellino and uses Microsoft’s “Open Tech” proxy as the mouthpiece. Microsoft apologist Adrian Bridgwater added his contribution to this PR (not news, just rehash) and to clarify, “CoreCLR is the execution engine for .NET apps and performs compilation to machine code, garbage collection, and other core functionality to .NET,” Phoronix wrote, echoing Microsoft’s own words rather than check the facts. The Microsoft-friendly media said that “The vision is for .NET Core to be truly cross-platform, and while it’s not quite there yet, Microsoft intends to add Linux and Mac implementations of components for these platforms in coming months, just like with its .NET open source efforts.”
.NET is neither Open Source nor cross-platform, but these lies continue to be disseminated in the media based on some provisions that are yet to be evaluated. Moreover, .NET is about spreading Microsoft to everything, it’s not about FOSS. Labeling it “FOSS” is intended to help it spread into departments with FOSS-centric policies. It’s an “embrace and extend” strategy, just as we saw recently in Raspberry Pi (see [1] below for a good explanation) and also in Android (through Cyanogen as an external proxy and provocateur). Here is what Microsoft really has in mind. Microsoft is hoping hijack Android in an embrace-and-extend fashion, as Microsoft attempted to do with Java in the 90s. “Do encourage fragmentation of the Java classlib space,” said Ben Slivka from Microsoft. They sought to destroy Java by embracing and fragmenting it, much like the Microsoft-funded Cyanogen does right now. Using another (indirectly) Microsoft-funded proxy, Xamarin, Microsoft hopes to make Android .NET-dependent. █
Related/contextual items from the news:
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Gone are the days when Linux users tried to run their free and open source operating system on Microsoft-controlled hardware: PCs. As Microsoft’s OS and Office market share is declining, and with an (almost) failed mobile platform, the company is now looking at open source for its survival.
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Posted in Europe, Patents at 3:38 pm by Dr. Roy Schestowitz
Summary: The European Patent Lawyers Association complains about lack of effective and independent oversight, revealing yet again that EPO critics are far beyond disgruntled employees
About a month ago we noted that the European Patent Lawyers Association (EPLAW) had complained about the EPO's management for its ill conduct. A bit less than a week ago EPLAW cited Techrights [PDF] in its analysis involving members of the Boards of Appeal (BoA) and the way they are treated by the EPO’s management. Days ago Merpel from IPKat wrote about threats to the future of the BoA, noting based on sources the following:
From the fact that the current business distribution scheme for the Boards of Appeal extends only to the end of March, it seems likely that the intention is for a proposal to be decided by Board 28 next week, approved by the Administrative Council in March, and implemented in April. Put another way, whatever the proposed new arrangements are for the administration of the Boards of Appeal, they are likely to be implemented very quickly and with no consultation. Users have certainly not been consulted, and Merpel understands that until now, neither have the Boards of Appeal themselves.
“The EPO is out of control and if it gets its way, patent scope will be thrown out of the window and Europe’s door will be opened to patent trolls.”Merpel’s analysis is long but worth reading. Someone familiar with EPO affairs must be feeding her relevant information, as raising concerns internally is too risky for this organisation, which now operates its own Stasi-esque Investigative Unit. As EPLAW’s analysis was contained inside a PDF we worry that it would not reach the broad audience it deserves to reach, so here it is as HTML:
EPO – The independence of the Boards of Appeal – Responsibilities of the Administrative Council
This Blog has recently published an open letter1 of the European Patent Lawyers Association (EPLAW) to the Delegations of the Administrative Council (AC) of the EPO. EPLAW joined the chorus of patent professionals expressing their concerns about the temporary removal of a member of the Boards of Appeal (BoA) from office, as ordered by the President of the EPO and confirmed by the AC.
In addition to public discussions among patent professionals, further developments regarding the status of the BoA have taken place “behind the scenes”. The following is a summary of proposed or already enacted measures that have come to my attention:
Among others, the AC adopted in its December meeting an amendment to the Service Regulations2 affecting the status of the members of the BoA as civil servants of the EPO. Inter alia, this amendment provides the following:
- Introducing a probation period for Board members;
- Including the members of the BoA in the category of employees of the EPO who are subject to reporting on their ability, efficiency and conduct;
- Defining the drawing up of appraisal reports as a managerial task;
- Introducing a new salary adjustment procedure
o replacing step advancement based on seniority;
o providing step advancement and payment of bonuses based on performance and competence as assessed by the responsible manager.
This may open the possibility of giving a reward to Board members producing the expected numbers (or kinds) of decisions with the expected results and penalizing those members not measuring up to the expectations of the EPO management.
In the same meeting, the AC decided on appointments and re-appointments of Chairpersons and members of the BoA. From the Council Secretariat’s Communique and the new Business Distribution Scheme for the BoA as published in the meantime, the following points are apparent:
- No new appointments of Chairpersons and members of the Technical BoA have been made;
- The re-appointments of members whose term of appointment terminates in early 2015 have been delayed – deviating from previous practice – until the last minute.
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1 http://www.eplawpatentblog.com/eplaw/2014/12/eplaw-blog-judicial-independence.html
2 http://www.epo.org/modules/epoweb/acdocument/epoweb2/159/en/CA-D_10-14_en.pdf
As a result of this conduct, two chairs of Technical B0A have been vacant as of January 1, 2015, one of them being BoA 3.5.01 competent for the field of business methods, having a particularly heavy backlog. No new appointments were made in the December meeting for technically or legally qualified members, nor have, so far, any vacancies been announced by the EPO with the consequence that no selection procedures preceding a proposal for appointment have been initiated. On the contrary, as alleged in one of the comments in IPKat, several candidates already selected in terminated selection procedures have not been proposed for appointment by the President since decision R 19/12 was issued. It is not apparent on which basis the President of the EPO and the AC can assume that a substantial reduction of the number of chairpersons and members can remain without serious effects on the working of the BoA, in particular on the pendency of appeal cases.
In the Council Secretariat’s Communique on the December meeting, the AC expressed “its full endorsement of and support for the principle of independence of the members of the Boards of Appeal, as specifically set out in Article 23 EPC and generally embodied in internationally recognised principles of judicial independence”.
Alas, the reality appears to be different. The decision on the amendment to the Service Regulations was taken having recognized that the status of the BoA had become an extremely delicate political and legal question following the unprecedented action of the Office Administration against a Board member. It would have been an easy matter to exempt the members of the BoA from the new career and salary system. The omission to do this is difficult to understand.
Similar concerns appear to be justified by assessing the role of the President in re-appointment proceedings. Having only the right to be heard on re-appointments under the Convention, he obviously has extended this right to a right of proposing re-appointments. In the context of the reporting system under the amended Service Regulations, the present manner of handling the matter would allow the President to restrict re-appointments to members who are seen as particularly compliant with the management’s objectives.
It is the task of the AC to supervise the EPO. Having seen that AC documents on re-appointments had not been produced in good time, it would have been a proper task for the Chairman of the AC to put the re-appointment of Board members on the AC’s agenda. If necessary, the Chairman could have simply asked for a list of members due to re-appointment. In this way the impression would have been avoided that the President could take the instrument of re-appointment for exercising pressure on members of the BoA.
The task of supervision implies that there is a certain distance between the Office and its supervising body. In the present context, the public and the users of the European
patent system could expect that the AC would examine the President’s temporary removal of a Board member from office and its effects on the independence of the BoA independently. Instead, the Chairman of the AC gave a common interview with the President of the Office conveying the impression of a common conviction that everything is under control and in order.
Lack of separation and control and delays in readying the BoA for the future is not what the users of the EPO, in particular the applicants financing the EPO with their fees, expect from EPO management and the AC. The public concern expressed in many letters and in numerous discussions about the recent actions clearly shows that not everything is in order and that the AC should use its authority to supervise the Office in order to implement the necessary short-term and long-term changes. Co-operation between the AC and the EPO is in many situations the best choice. However, for the sake of safeguarding the independence of the BoA, simply avoiding independent and critical assessment of obvious flaws for the sake of the appearance of “business as usual” is not good enough and is not in the long-term interest of the EPO users. Obviously, the President has intervened in the activities of the BoA and information obtained in the meantime has not indicated that this will not happen again in the future. Transparency is of crucial importance and the AC should try to regain the lost confidence of the users of the EPO, e.g. by seeking external advice from judges, users and last but not least by members of the BoA before taking far-reaching decisions.
According to the President, the AC “decided that in full respect of the Office regulations concerning investigation, the Office Investigative Unit is the competent body to pursue this investigation and to deliver the report”. This sounds like a general approval of the Investigative Unit’s activities based on the Guidelines for investigations at the EPO. These Guidelines became known by the letter of the internal members of the Enlarged BoA requesting the members of the AC to take appropriate measures for ensuring the independence of the BoA.
The users expect that the AC reviews the role of the Investigative Unit in general and in particular as far as members of the BoA are concerned. It is not to be reconciled with the international recognized principles of independence as confirmed by the AC that an Office acts as prosecutor against its judiciary. As rightly stated by Sir Robin Jacob in his letter to the Chairman of the AC written on behalf of the Intellectual Property Judges’ Association (IPJA)3, if there are criminal charges this is a matter for action by the criminal law enforcement authorities, not the Office Administration. In this context, it appears necessary for the AC to scrutinize the powers and actual activities of the Investigative Unit. For example, EPO staff requests that it should be examined whether the applicable data protection requirements4 comply with international standards and whether there is an independent body ensuring that the
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3 http://ipkitten.blogspot.de/2015/01/judicial-independence-europes-ip-judges.html
4 http://techrights.org/wp-content/uploads/2014/10/DPG-2014.pdf
Investigative Unit’s way of actually collecting and using such data complies with such requirements.
In any case, parties to appeal proceedings should be given an unrestricted guarantee that the first instance is denied any access to means of communication used by the members of the BoA. Particularly, for a number of parties who have filed objections based on allegations of suspected partiality of the Chairman of the Enlarged BoA, it might be a rather disturbing consideration that the Investigation Unit may have access to the communication between members of the Enlarged BoA.
Finally, the representatives of the EU member states in the AC may be reminded of their responsibility to make the EPO fit for its tasks under the regulation on the unitary patent. Spain has based its action against this regulation on the main and first argument that a regulation has been established on the basis of a right granted by the European Patent Office, whose acts are not subject to judicial review. The Advocate General succeeded in his opinion to avoid this problem by arguing that the Regulation does not affect the EPC. However, the ECJ has not yet taken its decision and the recent actions of the President of the EPO demonstrating his powers over the BoA may prompt the ECJ to look closer at the matter and to ask the question whether it is in agreement with EU law that the unitary patent as an EU industrial property title may be revoked by the EPO’s opposition division. Juliane Kokott concludes in her opinion written for the Advocates-General in the previous case G 1/095 that this is a body whose decisions are not subject to judicial review complying with the requirements of an efficient judicial control within the meaning of Article 47 of the EU Charter of Fundamental Rights.
The dangers for the independence of the BoA based on the fundamental problem of the BoA’s administrative integration into the Office (see Festschrift “50 Jahre Bundespatentgericht”, Cologne 2011, p. 911) have materialized in an unforeseen manner. The EPO has buried the project for a revision of the EPC implementing the organisational autonomy of the BoA of the EPO within the European Patent Organisation by taking the basic proposal for a Diplomatic Conference, Doc. CA/46/04 of May 28, 20046, from the EPO’s website. Now, it is up to the AC to take legislative initiative.
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5 http://www.ipeg.eu/blog/wp-content/uploads/Advocates-General-Opinion-1-09.pdf
6 http://legaltexts.arcdev.hu/law-practice/legislative-initiatives/autonomy.html
The abuse by EPO management (probably breaking the most fundamental rules) is bound to erode legitimacy of a Unified Patent Court — a landgrab by and for corporations which wish to dominate through patent protectionism. Watch what this new “Intellectual Property Edition” tells us about the European patent legal system that is envisioned by the occupying lobbyists. “25 EU Member States signed the Unified Patent Court (UPC) Agreement in February 2013,” says the analysis, “laying the foundations for a Court common to all participating Member States and having exclusive jurisdiction for both European patents with unitary effect (Unitary Patents) and European patents validated in one or more of the participating Member States (European Patents). Accession to the UPC Agreement is open to any EU Member State and, to date, all EU Member States except Spain, Poland, and Croatia have signed the Agreement.”
Notice how they simply marginalise states that antagonise the idea, rather than take them into account and perhaps reconsider the entire thing. This is a nasty, undemocratic process — aligning perfectly with what we have been seeing and reporting about. The EPO is out of control and if it gets its way, patent scope will be thrown out of the window and Europe’s door will be opened to patent trolls. █
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