11.15.16
Posted in Patents at 6:46 am by Dr. Roy Schestowitz
Most of them were relying on software patents all along
Summary: Even the loudest proponent of patent trolls is willing to admit that they suffer
One thing we have lost sight of amid coverage of EPO scandals and software patents at the USPTO is patent trolls. They just don’t make the headlines anymore (or barely get mentioned). One might expect Vringo to step away into the darkness by now, but no… it actually composes articles. Advice from patent troll Vringo, a nasty, malicious firm that is also Microsoft-connected, as we noted here before? Its new article (“Devising international patent litigation strategies”) comes at an interesting time.
“It’s not often that we see IAM saying the truth about this subject.”Today, IAM posts a sort of sob story for this patent troll and bemoans the demise of patent trolls in general (referring to these as “NPEs”, as usual). “We have become accustomed to NPEs looking to diversify their offerings as the climate in licensing has worsened,” IAM wrote.
It’s not often that we see IAM saying the truth about this subject. Last month we even saw it using the “T” word (troll) at least once and the editor criticised the President of the EPO. We welcome this growing level of honesty. █
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Posted in Europe, Patents at 1:09 am by Dr. Roy Schestowitz
Summary: The Central Staff Committee member resignation had virtually nothing to do with Laurent Prunier, the latest victim of Battistelli’s war on the staff union of the EPO (SUEPO)
In his Communiqué 9/2016, Battistelli alleges that the “apparent forced resignation” of a Central Staff Committee (CSC) member on 1 December 2014 had been the result of an “active participation of the subject in a campaign of harassment“ which included “exclusion, isolation and intimidation.”
This public defamation of Laurent is as unfair as the decision to dismiss him.
“To my knowledge, the proceedings against Laurent were launched by a protégé of Mr Battistelli, with the obvious goal to dismiss Laurent.”Here is some background about what happened:
During a consultative “GCC” meeting of the CSC and management, the CSC member who later resigned had not voted against the new career system, but had abstained. By doing so, he did not respect a democratic majority decision previously taken within the CSC. And he had not told the other CSC members before the meeting that he would not vote against the career proposal. The result of the vote in the GCC was 10:9 in favour of the new career system, which then entered into force in 2015. The CSC member was then heavily criticised for his behaviour by many disappointed staff members. As a consequence, he declared his resignation from the CSC with his announcement “Behind the GCC” of 25 November 2014. At the same time, he accepted that he had made a mistake and he apologised to staff from all sites for having abstained from his vote. When taking this into account, it seems to be unlikely that he later launched disciplinary proceedings against any one of his colleagues. Had he felt being harassed, he could have done so. But he did not. To my knowledge, the proceedings against Laurent were launched by a protégé of Mr Battistelli, with the obvious goal to dismiss Laurent. █
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11.14.16
Posted in Europe, Patents at 5:51 pm by Dr. Roy Schestowitz
EPO flirting with radical authoritarian nationalism where Battistelli does anything he wants
Summary: Battistelli’s inability to respect the hierarchy at the European Patent Office and Organisation stresses the importance of throwing him out, putting to sleep the tail which wags the dog
PORTIONS of the meeting minutes of the October 2016 Administrative Council meeting (primarily in German) made their way to us after the meeting had ended and we finally have the full document [PDF]. We are hoping to have an English translation soon.
What does the document serve to show? Well, it shows that Battistelli was supposed to suspend his union-busting activities, which certainly he did not. There might soon be another protest in The Hague over it. Battistelli is totally out of control!
If one looks at IP Kat comments today, there are about a dozen new ones. “Battistelli’s presidency has revealed the fatal flaws in the EPC,” said one person, but actually, Battistelli ‘hacked’ the EPC (even violating it several times) and this is very dangerous as it can doom the whole Organisation. The Administrative Council ought to know this by now. Here is the full comment:
Is article 4a enforceable in any way? Against whom and by whom? Who is responsible for calling such a conference? It does seem the only way that a semblance of democratic oversight might be possible by this means. Do the member states want to move from a system favoring small and medium enterprises, which benefits the economy and stimulates employment, to a registration system which favors big enterprises with deep pockets, as Battistelli clearly intends. This should be a political decision, taken by elected representatives, not by one man.
And to enter the discussion about whether patent attorneys an or should complain, they are the servants of their masters, who fall into two groups: those who benefit for a high examination standard, and those who do not. It is futile to expect that as a group they can come to the rescue.
Battistelli’s presidency has revealed the fatal flaws in the EPC, which provides no practical mechanism for democratic oversight of the workings of the EPO.
“Liechtenstein hasn’t attended the AC for years,” said this person. “They have perfect teeth.” (this relates to an old observation about free dental treatment). Is the Administrative Council so deep in Battistelli’s pocket? Are the delegates mere chinchillas?
Here is another comment on the subject:
Morale will only improve when law, justice and the framework for mutual respect and fairplay are restored at the EPO. There is no excuse for those with the highest of authority not to remove this toxic Enarque and his clique. The country responsible for this toxic entryism at the EPO should
now financially and morally support all those victims, including Laurent, who have suffered at the hands of the Enarquien tyrant. A disgrace to the ENA, a disgrace to Europe….
“Battistelli can just ignore its results just as he ignored what the Council requested (twice),” said the following comment:
I don’t see how a Conference of ministers of the Contracting States could be useful. Battistelli can just ignore its results just as he ignored what the Council requested (twice).
Sorry to ask the same question again: but what can the Council really do, in practice, if Battistelli simply ignores what they ask? He can simply do as he wants and ignore anything the Council pushes at him, can’t he? I mean: he already did.
Sure, the Council can open disciplinary proceedings (in theory, I don’t think the form these proceedings are supposed to take has been planed in the texts). Sure, the Council can refuse to vote the budget. But the Council cannot stop Battistelli dismantling the European Patent Office if that is his plan. He can continue as long as he gets votes from 10 countries. Even for a second or third term, as far as I can tell.
All he needs are the votes from 10 countries.
Now the question is: why would these 10 countries do that, considering the scandal? The answer is that there are probably 10 countries among the 38 which have little or no patents and few industries to protect, so they don’t care. These countries may even see it as an advantage to annoy the big users of the patent system. Maybe they believe that if, e.g., the German small and medium industry cannot use the patent system as effectively as they do, they could develop small and medium industries of their own? Who knows?
Did I understood correctly or are there any Articles I did not consider in the EPC or in other treaties?
The Administrative Council probably needs to coordinate (in secret of course, for their own safety) the dismissal of Battistelli. The harder Battistelli pushes them around and the more utter lies he spreads around, the more ‘leaky’ the EPO becomes. People want the truth to be told. We are getting virtually every document, we just lack the time to study and publish it all. Certainly, the more often Battistelli breaks the law and the more arrogantly he does so, the more likely we are to hear from people in his vicinity. He can’t survive in his job like this. The EPO does not have a few disgruntled employees but thousands of such employees (maybe a silent majority). They’ve had it with Battistelli and they recognise that he is their enemy, not their boss, as he puts the entire Office in jeopardy. If they wish to work collectively for job security, then they will need to topple/oust Team Battistelli. It’s almost like their moral duty.
This new union-shaming comment makes us wonder if Battistelli’s lies now make their way into blogs in the form of anonymous comments. This has already been rebutted politely by others, who correctly explain the role of management in all this. Blaming the unions for all the problems is like blaming whistleblowers rather than the crimes exposed by these whistleblowers (and the perpetrators of these crimes).
Here is what one commenter said in response:
What a pity that under the current rules of the EPO, the public at large – but also SUEPO members and all the staff – conveniently cannot hear the version of Prunier and the other dismissed representatives and make up their mind, while the President and you, dear anonymous, are free to provide their own.
Another said this:
Surely the issue of whether or not Mr Prunier should be fired are pretty much irrelevant. The two big issues are:
i) There is a clear lack of due process when the President of the EPO and others can publicly provide comment on the case (including unsubstantiated allegations that cast the EPO in a bad light and are detrimental to its reputation) but the person fired cannot provide any public comment lest he be further punished by losing his pension.
ii) The AC explicitly told the President not to take any further disciplinary action against SUEPO leaders before ensuring that the disciplinary proceedings are fair and seen to be fair. This has not been done so the action to fire Mr Prunier are in direct violation of the AC’s instructions to the President. This casts further bad light on the EPO and is detrimental to its reputation.
To my mind the President of the EPO is undertaking actions that are clearly detrimental to the reputation of the EPO. This is something he has been very strict on in relation to his employees and, in the order to be fair, he should be subject to comparable disciplinary proceedings.
It is well documented, not to mention publicly stated, that Battistelli was not allowed to dismiss Mr Prunier.
Do the Administrative Council’s delegates realise just to what extent Battistelli mocks/humiliates/insults them? They need to organise and remove this menace from the Office, escorting him out of Eponia along with his spurious bodyguards that are a total waste of money. There are some (in)famous mental health hospitals not so far away (over in Haar for example). Maybe he can admitted before it’s too late and maybe there is even a cure for his megalomania. This spoiled brat behaves more like a child than an adult capable of handling an office with such a high budget and so much at stake. As some employees put it, "Not My President". █
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Posted in America, Patents at 4:49 pm by Dr. Roy Schestowitz
Politics being put aside for a moment, except patent aspects alone
Photo credit: Marc Nozell from Merrimack, New Hampshire, USA
Summary: Patent news from the United States, as discussed in several prominent patent blogs over the past week (when news was dominated by Donald Trump‘s election win)
Trump and Patents
THE US political system is in somewhat of a divisive turmoil right now and even today people wonder what this will mean for patents (“The Next Unknown in Intellectual Property“). Based on the appointments made by Trump (so far), it’s going to be more of the same as corporations and lobbyists will steer policy; there is no sign of revolution there.
Here is what Patently-O had to say on the subject: “The question on everyone’s mind is how the patent office and patent system will be restructured once Donald Trump becomes president. Trump has substantial personal experience protecting and enforcing his own trademarks, including attempts to protect more controversial marks such as ‘you’re fired.’ However his businesses have few if any patent rights and have relied on the perception of luxury rather than innovation for their successes.”
Here is what IAM, apologist of patent trolling, said about the subject:
Well, hands up if you saw that coming! For those of us who lived through the Brexit referendum, the idea that polls and betting markets are accurate forecasting tools was shown to be nonsensical months ago; but, even so, Donald Trump’s victory over Hillary Clinton in the US presidential election has come as a surprise to many – we really should have known better.
President-elect Trump will be inaugurated on 20th January, so he has just over two months to get his policy priorities sorted out and his top team in place. Given that he has so much to do, it is unlikely that IP will be at the forefront of his thinking; however, there will be a lot of members of the US IP community wondering what the future will bring for patent, trademark and copyright owners.
Agenda of patent maximalists too continues unabated. Frommer Lawrence & Haug LLP, a law firm, is trying to figure out how to work around the law and get software patents in the US (article by Joseph Saphia and Bonnie L. Gaudette) and Professor Dennis Crouch speaks of the Chevron deference (background here), saying that “[t]his change would breathe new life into Challenges of the AIA Trial system, USITC decisions, as well as a large host of USPTO procedural examination rules and fees.”
In another new article, this one about software patents in Amdocs v Openet, Crouch says:
In the end, I don’t know how important Amdocs will be, but it offers an interesting split decision on the eligibility of software patent claims. Senior Judge Plager and Judge Newman were in the majority — finding the claims eligible — with Judge Reyna in dissent. One takeaway is that the Federal Circuit continues to be divided on the issues. By luck-of-the-panel in this case, the minority on the court as a whole were the majority on the panel (pushing against Alice & Mayo). Going forward, the split can be reconciled by another Supreme Court opinion, a forceful Federal Circuit en banc decision, or perhaps by future judicial appointments by President Trump. I expect 2-3 vacancies on the court during Trump’s first term.
This is where things get potentially troublesome. Over the years we wrote about Scalia’s stance on software patents and now that he is dead no doubt some other Conservative Justice will be installed. People like Joseph Saphia, Bonnie Gaudette, Dennis Crouch and so on certainly hope for a resurgence of software patents. This is bad news for opponents of software patents, notably people who actually develop software. In the imminent future, however, there is nothing that can bring back software patents, based on today’s cumulative outline of SCOTUS cases from Professor Crouch. “Software is a field of technology that is closely akin to mechanical engineering,” said Cohausz & Florack, another law firm without a clue about software and how it works (it is extremely different from mechanical engineering). It’s yet another new rant about the scarcity of software patents or their lost legitimacy in the US.
FRAND
Software patents in the area of telecom continue to be a barrier to startups that use Free/Open Source software to get off the ground, so we must get patents out of industry standards. According to this new article from MIP, however, the plague of FRAND (similar or related to SEPs) is still there. To quote: “What level of royalty fee can be considered genuinely FRAND? There is disappointingly little case law on this question, says David Sant, but a pending case in the UK may provide guidance…”
If these patents are on software, then in lieu with the law the royalty should be zero (with “Z” before RAND/FRAND). Otherwise, bad things would happen not only in the UK but in the whole of Europe.
Speaking of telecom patents, “France Brevets Licenses NFC Patents to HTC,” says a new announcement and China is not tolerating Qualcomm with its SEPs and therefore China benefits. Here is the part about Microsoft's patent blackmail of Xiaomi over its Linux products: “The privately-held company has reportedly run margins as slim as 1.8%, perhaps explaining why its biggest third-party acquisition has been a hybrid licensing deal with Microsoft, potentially allowing it to gain 1,500 patents without a big upfront cash payment.”
That’s nonsense. As we wrote at the time, Microsoft used patents to compel Xiaomi to preload Microsoft malware on millions of products, reaffirming that Microsoft still hates Linux and attempts to destroy it from the inside using patents.
Netflix v Rovi
Back in 2015 there was press coverage about Netflix v Rovi and there is some good news from the US right now. As a credible and good reporter put it (not some patent lawyers), “TiVo’s “TV Guide” patents are DOA at appeals court”. To quote his article:
A five-year-old patent brawl between Netflix and Rovi (now TiVo) has reached a turning point, with the US Court of Appeals for the Federal Circuit upholding a major lower-court victory by Netflix.
The litigation between the two companies began in 2011, when Netflix sued to invalidate a batch of patents on Rovi’s digital entertainment guides, for which Rovi had demanded Netflix pay licensing fees.
The patents described ways of navigating TV and other video content online. Even after Netflix lawyers bested Rovi at the International Trade Commission and then pounded all five patents out of existence at district court last year, Rovi said it would push forward with an appeal.
Now it’s clear that Rovi’s strategy to patent digital TV guides has hit a wall. Just a few days after Rovi’s lawyers made their oral argument, a panel of judges at the Federal Circuit upheld (PDF) the lower court’s decision in its entirety without comment.
As a reminder, Rovi is now connected to the world's largest patent troll, Intellectual Ventures, which is in turn strongly connected to Microsoft and Bill Gates.
Patent Quality
Courts quite certainly are growing tired of software patents and fewer software patents are even brought before the court (probably the more potent among them). The USPTO hosts a “patent quality conference” these days, perhaps realising that quality is a problem after the US Government Accountability Office (GAO) explicitly said so. To quote Patently-O: “The following is reprinted from USPTO Director Michelle K. Lee’s “Director’s Blog.” On December 13, 2016, the USPTO is hosting its next patent quality conference.”
Just hosting a conference about it does not, in its own right, improve quality. One can hope though. As for Trump’s policy on it, this may remain somewhat of an enigma but with more Conservatives at SCOTUS things don’t look particularly promising. █
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Posted in Europe, Law, Patents at 1:29 am by Dr. Roy Schestowitz
De facto martial law under King Battistelli (like Erdoğan in Turkey)
Summary: The EPO has quickly descended into a police state, but the supervisors of Battistelli (national delegates) have thwarted or at least postponed his incredible pursuit of imposition by the highest-ranking governor (himself) on everyone, effectively removing all power from the previous executive, legislative, and judicial branches of the EPO (Organisation), under the pretense that this is necessary for the Office to function effectively (e.g., to maintain order and security, or to provide core services)
SOMEONE recently leaked to us an opinion on the Investigation and Disciplinary Guidelines [PDF, 17MB] (or disciplinary and investigation guidelines) proposed for Battistelli’s chinchillas (the Administrative Council, or AC for short) to pass to him on a silver platter, probably for continued persecution of perceived ‘enemies’ and union-busting activities. We saw some portions of discussions about it, in particular after this failed to pass (the chinchillas found some backbone for a change). “A Game Changer” is what one person called it (alluding to the UK delegation which expressed its feeling that this could be a “game changer”), but it wasn’t long before Battistelli resumed union-busting activities, in defiance of the chinchillas’ opposition (he doesn’t care what they say, he just does whatever he wants anyway). “It seems that as the result of a coordinated effort by the AC delegates, both the Investigation and Disciplinary guidelines proposed by the EPO have been removed from the AC agenda,” said one person. There’s some background to all this, namely “the somewhat unfruitful discussion in the Board 28,” which is definitely aware of the crisis at the EPO*.
“Curiously, based on what we learned, Battistelli grossly violated/ignored what was decided on because “in clear terms delegates insisted that no decision should be taken on presently running disciplinary procedures until the new procedure is put in place!””As a result of this rejection (Battistelli not getting what he demanded), the opinion will be taken into account and the proposals revised for next month’s meeting. There seems to be growing interest in improving protections for staff representatives and union leaders. Has the coin finally dropped? Is the AC realising that Battistelli is totally out of control?
Curiously, based on what we learned, Battistelli grossly violated/ignored what was decided on because “in clear terms delegates insisted that no decision should be taken on presently running disciplinary procedures until the new procedure is put in place!”
Well, Battistelli fired a staff representative regardless. What a mockery to the AC. The tyrant is so insecure that he doesn’t care what the rules say. Delegates from Switzerland, France, Britain and the Netherlands in particular got snubbed by Battistelli. Isn’t it time for them to fire him already?
“Delegates from Switzerland, France, Britain and the Netherlands in particular got snubbed by Battistelli.”As staff representatives explicitly put it, “there is no specific safeguard for Staff representatives or Union officials in disciplinary procedures, especially when the complaints are filed directly by the President or a high official [like Bergot] acting under his authority.”
In relation to the person whom Battistelli brutally fired this month, representatives wrote at the time that he had been “downgraded in Jan 2016 (against the recommendation of the Disciplinary Committee). In fact, the Office has launched investigation and disciplinary procedures against several other Staff representatives as well, affecting negatively their health.”
EPO workers are also citizens of European nations. Their human rights cannot simply be disregarded when they visit Eponia**. █
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* The summary results of the 75th Board 28 meeting said that “The new proposals were welcomed, but nevertheless no common understanding could be reached on the right to remain silent and on other issues. The President had strong reservations on this issue, insisting on the necessity to ensure an efficient procedure to fight fraud and harassment, and reserved the possibility to withdraw the package from the agenda.”
** Incidentally, later today Julian Assange will have his rights revisited and his lawyers currently (overnight) spread around this image (copied below).
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Posted in Europe, Patents at 12:02 am by Dr. Roy Schestowitz
Elodie Bigot’s letter…
Summary: Slides about institutionalised injustice at the EPO are being censored by EPO management, in yet another rather pathetic effort to deny truth and prevent staff from knowing the facts about the increasingly libelous, lies-spewing Office
Elodie Bergot is worse than a liar as she also prevents staff from speaking out the truth, thereby refuting the lies. Recently, somebody leaked to us the above letter which is in circulation. The double standards there are jaw-dropping, especially in light of the recent public defamation of an EPO staff representative, as revealed by another leak of ours (we were first to report this). There is clearly a pattern of defamation here; people whom Battistelli does not like get compared to Nazis and criminals. They cannot even challenge these false characterisations that culminate in dismissal because, as Battistelli knows, he is virtually above the law. He makes threats to prevent dissemination of information. The EPO’s presidency, increasingly like the new U.S. presidency, is authoritarian, truth-denying, narcissistic, revenge-obsessed and ego-maniac.
The above letter recently resulted in a response which was an open letter [PDF]. This letter too highlighted the double standards, which are simply impossible to ignore. To quote the Central Staff Committee: “Your letter is surprising in its harshness. Besides the introductory paragraph in which you reiterate your fondness for freedom of expression 8 , you allege that our intention was to “insinuate”, “unduly exaggerate”, “create confusion”, “mislead”, or make ”incorrect” 9 statements and that our only aim is “heavily discrediting the Office’s system”. You go on to say that “the proposed document is considered as not in line with principles of respectful and truthful publication of with our Code of Conduct”. You also say that some wording is “unnecessarily polemic and hurtful to the staff involved”. With respect, these are gratuitous, unilateral assertions based on your own interpretation of the document.”
So there we are. Here in Europe we have a broken patent system which denies justice and those who wish to express an opinion on it or merely point out the problems are severely punished, usually with bogus charges. I too got threatened. Fascism may not have spread everywhere in Europe (yet), but the likes of Marine Le Pen, autocrats like Bergot (or the wife of the autocrat’s buddy), already made Eponia a fascist state with undercover spies that are connected to Desa (literally former Stasi staff). █
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11.13.16
Posted in Europe, Patents at 9:31 pm by Dr. Roy Schestowitz
Serial harassers of staff at the EPO
Summary: “Correct application of double standards,” as anonymous workers put it, would help us understand the injustice at the EPO and would have had the management fired a long time ago
THE EPOFLIER (or EPO Flier) team has just released the following text, which someone was kind enough to leak to us. We have decided to republish that as it helps capture the way EPO staff feels about the management, as well as justifications for such feelings.
The EPOFLIER wants to provide staff with uncensored, independent information at times of social conflict
Correct application of double standards
Some pearls in Communiqué 9/2016
In an organisation that does not set and live proper standards, double standards prevail – everywhere.
Staff representation is not for the faint-hearted. It is a truly political activity with battles about the interpretation of a perceived electoral mandate. It is a constant struggle for majorities in the Committee. The staff representative allegedly “forced to resign” had not stood for election for the first time, so was able to anticipate the realistic, albeit not ideal, working conditions of a committee member.
Communiqué 91 defines “… active participation … in a campaign of harassment … by exclusion, isolation and intimidation” as misconduct. In the past we have repeatedly been able to observe such behaviour by the now Principal Director Human Resources, who should lead by example. In her case it resulted in rapid, extraordinary and unprecedented double promotion to the level of respective incompetence (Peter principle 2).
The President, together with the Disciplinary Committee, now brings some clarity to the proportionality of standards to be applied by the Office. The “… severity of the breaches
and the absence of any regrets or commitment by the subject not to repeat them” apparently justifies dismissal as the appropriate measure.
The President appears to have seen the light as he now publicly affirms that “The freedom of thoughts and expression and diversity of opinion are highly respected and valued rights at the EPO.”
So we may now claim consistent application of standards. If lived standards come to bear, Laurent gets re-instated and promoted. For the decreed standards, the cascade of events is now clearly laid out:
- Staff claims misconduct on the side of at least Principal Director Human Resources for repeated and protracted “harassment … by exclusion, isolation and intimidation” in multiple cases, and of Vice President Administration and the President for collusion in nepotism and supporting harassment
- For the President, the misconduct extends to not following clear, unambiguous requests by the Administrative Council3
- The Investigation Unit does its work in an uninhibited manner, submitting its reports to the respective appointing authority
- The appointing authority (President in the case of PD 4.3, Administrative Council for VP4 and President) analyses the reports and then will presumably initiate proceedings by the respective Disciplinary Committee
- The Disciplinary Committee will apply the newly established and confirmed principles uniformly and forward their recommendations to dismiss to the respective Appointing Authority
- The President will dismiss PD 4.3, to be subsequently dismissed by the Administrative Council, together with VP4
Luckily, there are enough double standards for everybody. Time for staff to claim dismissal of those who have contributed most to the erosion of standards in the Office, namely Mr Battistelli, Mr Topić and Ms Bergot.
The EPO Flier Team
Please help to distribute this flyer to your colleagues.
You can find more EPO-FLIER publications at www.epostaff4rights.org
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1 http://techrights.org/2016/11/04/battistelli-marches-hague/
2 https://en.wikipedia.org/wiki/Peter_principle
3 http://www.hipo.gov.hu/en/news/sztnh-hirek/hirek-esemenyek/147th-meeting-of-the-administrative -council-of-the-european-patent
Techrights intends to escalate the publication style because Battistelli has escalated his union-busting activity and he more severely punishes innocent people. The EPO is Europe’s most shameful institution in our view, but secrecy and meddling in the media (including soft bribes to very large publications) prevent the media from discussing it as much as it ought to.
We fear that if there are no disciplinary actions against the top-level management (culminating in firings), there will be no EPO left. █
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Posted in Europe, Humour, Patents at 9:07 pm by Dr. Roy Schestowitz
Summary: The latest cartoon in the series about the European Patent Office’s modus operandi
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