12.19.15

Patent Maximalism and the Patent Trolls Epidemic Which It Leads to Not a Problem for Patent Lawyers

Posted in America, Australia, Europe, Patents at 2:36 pm by Dr. Roy Schestowitz

Sometimes money is to be made by killing people, not helping people

[Via]

Summary: A roundup of recent articles and even paid-for press releases from proponents of software patents (and patents on just about everything) because they have nothing to worry about and patent wars (or patent stockpiling) is how they make money, regardless of the destructive outcome

THE patent maximalists, or those wishing to patent everything under the Sun (because they profit from it), are still occupying the media because everyone else is busy or apathetic.

An article in AOL, based on this press release, can be seen accompanying another press release titled “Stepes Files Patents for Its Chat-Based Translation Software”. These are software patents. They’re quite an epidemic in the United States and they should serve as a lesson for Benoît Battistelli’s EPO. This is why the US has so many patent trolls.

“This is why the US has so many patent trolls.”Remember AJ Park? It’s a firm that lobbied New Zealand for software patents at behest of rich multinational clients [1, 2, 3, 4, 5]. Here they go again promoting patents on business methods (closely related to software patents as per Bilski). AJ Park is based in New Zealand and Australia, where patent lawyers still bemoan the difficulty of getting software patents (Jack Redfern and Matthew Ward from Shelston IP Pty Ltd in this case) because the Australian government isn’t as easy for monopolists to corrupt. It’s not just an Australian thing; patent lawyers keep working hard to make shallow software patents possible to have granted in the US after Alice. They even issue new paid-for press releases and lobby for continued existence of software patents in the US (this one is from Mark Williams of Snell & Wilmer).

“It’s not just an Australian thing; patent lawyers keep working hard to make shallow software patents possible to have granted in the US after Alice.”As we noted here earlier this month, software patents have a lot to do with patent trolls. Texas, which we have been writing a lot about lately [1, 2, 3, 4], is proof of it. According to this new article: “U.S. courts are seeing a rash of lawsuits involving old and sometimes expired patents as companies try to squeeze the last bit of profits from their 20-year-old inventions.

“The patents sometimes end up in the hands of speculators who may go to court with infringement claims against other companies in the hopes of a big pay off — either by forcing settlements or going to trial.

“Xerox Corp., the office-copier pioneer now a target of activist investor Carl Icahn, has been transferring old patents for electronic documents and communications to outside firms this year. Those entities have since filed about 290 lawsuits against retailers, airlines, insurance firms and gaming companies — even though the patents had expired or will in a few years.”

Notice the role played by Carl Icahn, who helped Microsoft essentially kill Yahoo (he is still doing so). Also remember that Acacia used Xerox patents against Linux.

“Much like debt collectors,” said this EPO person, the above people are “buying old (often expired) debt claims to extort money to the unaware. Vultures. Parasites. Leeches.”

“It’s gratifying to see more complaints about patent trolls, but one way to tackle them would be to ban software patents, as a large majority of parasites and patent trolls rely on these.”Some of these types of leeches already come to Europe.

This patent maximalists’ site refers to trolls as NPEs and writes: “US tech companies have for years battled lawsuits against non-practising entities (NPEs), but now they are fighting back.

“A group of 24 amici curiae, including Adobe, eBay and Google, want to end patent law suit forum shopping – a tactic favoured by so called ‘patent trolls’.

“The group submitted a brief to the Court of Appeals for the Federal Circuit urging that a domestic corporation’s “residence” for patent-suit venue purposes, is limited to its state of incorporation.”

It’s gratifying to see more complaints about patent trolls, but one way to tackle them would be to ban software patents, as a large majority of parasites and patent trolls rely on these. █

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Links 19/12/2015: Manjaro Linux 15.12 RC 2, Jolla is Back

Posted in News Roundup at 1:49 pm by Dr. Roy Schestowitz

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Jacques Michel (Former EPO VP1), Benoît Battistelli’s EPO, and the Leak of Internal Staff Data to Michel’s Private Venture

Posted in Europe, Patents at 8:55 am by Dr. Roy Schestowitz

Revolving doors, or monetising a public career for private profit later, using publicly-acquired connections and access

Summary: A look at a new kind of scandal at the EPO, where data protection is severely compromised for the sake of the management’s dubious goals

Benoît Battistelli’s EPO is a lot worse than people care to realise, even some of the EPO’s existing staff. The other day we alluded to "cooling-off periods" for resigning or retiring staff. Well, we have just received new information, backed by hard evidence, of something rather nasty involving http://www.europatis.eu. This site was created by the globe-trotting former VP1 Jacques Michel, another Frenchman who had his own agenda in mind. To quote patent maximalists (emphasis is ours): “As president of the EPO, Pompidou should have considerable powers over an organization covering 27 countries and a population of some 500 million. He is responsible only to the Administrative Council of the EPO. In practice, however, his strong political backing by the French government and the extensive lobbying by the French former EPO vice-president, Jacques Michel, indicate that he is likely to remain well disposed to Gallic influence. Pompidou has an extensive scientific background and considerable political experience as a member of the European Parliament from 1989 to 1999. However, he is a relative novice to the world of patents and is expected to be heavily reliant on his backers for most of his term of office.”

“Internal staff data has been intentionally leaked to Michel’s site.”This happens to relate to our series “Battistelli’s Furious Love Affair With French Power”, which is still ongoing.

Anyway, focusing on the main point, Michel is trying to headhunt/poach staff leaving the Office (be it by resigning or by retiring) for paid searches. This is fully in contradiction to what Battistelli now wants/wanted to establish. So, does Battistelli work contra Jacques Michel? As our source jokingly put it: “One or both are liars, Mafia, Templers, Scientology. File under conspiracy theory. You cannot trust them both.”

The main revelation, however, is this: Internal staff data has been intentionally leaked to Michel’s site. Our source has evidence for the fact that personal EPO staff data (at least full common name and E-mail address) has been leaked from internal EPO pages to Michel’s site in a case of resignation/retirement before the effective date.

“It’s not about what you do but about who you are and who you know.”How would European privacy (or “data protection”) authorities feel about it? How does existing EPO staff feel about it? It serves to highlight also the hypocrisy of Team Battistelli, which habitually complains about data leaking out of the EPO when it fact it is doing so itself. They try to distinguish between “good” leaks (those serving Team Battistelli by smearing the accused in the media or helping former EPO bigwigs) and “bad” leaks (those that expose abuse or even corruption implicating EPO bigwigs).

This whole affair reminds us of Keith Alexander’s highly fortunate career (he is a big millionaire now) after stepping out of the NSA and using privileged/confidential information to make money at incredible hourly rates. When Snowden gives evidence of NSA abuses to the public (gratis, not for personal gain) it’s naughty treason that merits death by hanging (apparently), whereas Alexander selling this information to private clients is just fine. It must be the Petraeus/Clinton-type of hypocrisy on confidentiality. It’s not about what you do but about who you are and who you know. █

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Rumour: Administrative Council Advises Benoît Battistelli Not to Fire Staff Representatives

Posted in Europe, Patents, Rumour at 8:00 am by Dr. Roy Schestowitz

Battistelli may risk losing his job if he sacks Ms. Hardon, Ms. Weaver and/or Mr. Brumme

Summary: New rumours about Benoît Battistelli’s union-busting efforts, new complaints to the EPO about traffic floods (possibly caused by its censorship Bluecoat appliance), and fresh complaints sent to the Administrative Council

“Now BB [Benoît Battistelli] has allegedly been advised by the AC,” said a comment this morning, “not to fire the suspended staff reps. He does not usually take this sort of advice. However, I wonder whether, in case that BB fires them despite this advice, the AC will prosecute then the charges of institutionalised abuse put before the AC by the staff rep in question.” (some typos corrected)

“I gave the network administrators enough time to respond and preferably take action.”This would certainly be quite a breakthrough given other rumours or speculations we have been hearing after the Administrative Council's sessions (some said that Hardon would be sacked imminently).

Incidentally, yesterday I reported to the EPO’s relevant people (admin_network@epo.org, jbielsa@epo.org, nderuiter@epo.org, wherler@epo.org, and ywoue@epo.org) abuse by its IP addresses (i.e. computers) against my site. I gave the network administrators enough time to respond and preferably take action. Here is what I wrote in the early hours:

Subject: Network abuse

Dear Network Administrators at the EPO,

Please be aware that IP addresses belonging to the EPO have been abusing my site, techrights.org, for a continued length of time, despite techrights.org reportedly being blocked from your network. This week, for instance, 145.64.134.245, has been quite busy hammering on the site and last night I had to ban it for nearly 200 attempts against Varnish in a very short period of time (just over a minute).

I don’t know if you are using a bot to access the site and I don’t know if there is an exclusion to the ban inside the Investigative Unit, which has engaged in some truly atrocious (and possible illegal) union-busting actions as of late.

I ask you politely to stop the offending addresses from effectively staging digital attacks or floods or my site. If I do not hear from any of you by 5 PM CET today, I shall escalate to the suitable European authorities and may pursue even further action.

These floods have been going on for literally months and they are becoming an embarrassment to your institution. I am eager to contact journalists regarding this matter unless this matter comes to a close by the end of the working day.

Kind regards,

Roy

Deadline was reached within more than half a (working) day, but no action was taken, so I ended up escalating. How does one respond to an organisation which is effectively above the law though? Well, perhaps the only way is to speak to those capable of taking action against the EPO. That’s Administrative Council delegates.

I sent the following message to some prominent delegates the same evening:

Subject: Abuses by EPO Against Bloggers

Dear European representative,

I am writing to you with the kindest of intentions, for serious problems arose at the European Patent Office and these affect me personally. For a number of years, as a software professional in the UK, I have been writing critically about the EPO, whereupon EPO simply banned my site (inaccessible to EPO workers), later threatened to sue me (widely reported on in the mass media because they were not even legally capable of suing), and right now IP addresses belonging to the EPO digitally vandalise my site by overwhelming it with automated requests (this has gone on for quite a while). They have, in essence, launched an assault on access to information itself. They actively threaten staff that speaks to the media about abuses and 3 months ago the EPO secretly signed an (almost) $1,000,000 1-year contract with the infamous Washington-based FTI Consulting for reputation laundering in the media. They actively try to prevent the public from finding out about a queue-hopping programme (for selected large corporations that submit patent applications), among many more scandals which serve to deny the illusion of EPO “success” and “growth”.

European delegates are the last resort now, as the EPO enjoys a controversial immunity that emboldens for abuse and disregard for European laws.

After repeated DDOS (distributed denial of service) attacks on my site I implemented some defenses and found that IP addresses belonging to the EPO are among the culprits. I reported this to the EPO, but they are not taking action to stop this. I asked them politely earlier today (message sent to their network administrators and is guaranteed to have been received), but no action has been taken, so I have to conclude this may all be intentional or that low-level staff is simply too afraid to intervene, having seen the extreme actions taken by management when any morsel of dissent/discontent was shown. The EPO has already threatened delegates, politicians, staff representatives, lawyers of staff representatives, and even journalists or bloggers.

I kindly ask you to put restraints on these practices and respond to unlawful behaviour by the EPO, not just directed at EPO staff but also at outsiders. The EPO rapidly became an embarrassment to Europe as a whole and it is consequently jeopardising unity inside the European Union, which I wholeheartedly support.

My sincere regards,

Dr. Roy Schestowitz

We don’t know if the message sent to selected delegates caused some kind of new contact between them and the EPO.

“We don’t know if the message sent to selected delegates caused some kind of new contact between them and the EPO.”To better understand what was likely hammering on our server we asked someone who may be familiar with the insides of the EPO network, whereupon we learned that “all internal EPO users, examiners etc., when they access the Internet, are routed through a PROXY! [...] In the techrights case it can be the case that so many examiners are currently trying to access your page, and that the Bluecoat appliance [believed to be in use] not only blocks the users from accessing techrights but also pings techrights, which causes a lot of traffic to your pages, but does not bring contents to the internal users. So it may be that it is not a DDOS but a side effect of (blocked for the internal users, by Bluecoat) accesses in the internal EPO network to your pages (but each try-access is sending a request to your server).”

Either way, the EPO should get its Bluecoat appliance under control. According to an RSF report (which we cited back in March), “American Company Blue Coat, specialized in online security, is best known for its Internet censorship equipment. This equipment also allows for the supervision of journalists, netizens and their sources. Its censorship devices use Deep Packet Inspection, a technology employed by many western Internet Service Providers to manage network traffic and suppress unwanted connections.”

What does that say about the real ‘enemies’ of EPO management? █

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EPO Pays FTI Consulting (Nearly a Million Bucks), Which Pays IAM for Pro-UPC Propaganda Event

Posted in Deception, Europe, Marketing, Patents at 7:23 am by Dr. Roy Schestowitz

Below is a self-explanatory screenshot

Summary: Benoît Battistelli’s EPO has paid a lot of money to FTI Consulting, which is in turn paying an untold amount of money to IAM in order to help create a pro-UPC forum, stuffed with biased (for their pockets) attendants, keynotes, etc.

IAM’s MANY writings about patents have been followed by yours truly for over half a decade. I’m no stranger to their ‘work’. As noted here before, IAM glorifies patent stockpiling (irrespective of the consequences), it promotes software patents everywhere, and it puts at risk people who are critical of the EPO. It recently blocked anyone who dared to expose IAM’s pro-EPO agenda as if they try to prevent communication and perhaps even have a lot to hide (they already admitted receiving money from the EPO).

“As noted here before, IAM glorifies patent stockpiling (irrespective of the consequences), it promotes software patents everywhere, and it puts at risk people who are critical of the EPO.”The UPC isn’t bad for everyone. It gives money to patent lawyers (who along with large corporations that employ them stand to benefit from more lawsuits, injunctions, etc.), but what about the rest of European society?

Last night we spotted what looks like some kind of a new EPO campaign hosted and run by its (paid by their own admission) ‘buddies’ from IAM. Remember that FTI Consulting was paid €880,000 a few months ago.

The event site is quite revealing. The agenda is made clear right at the front page. Regarding the UPC, for example, before it’s even approved they dub it “Europe’s New Patent Market” and then they use positive language like “Winning Strategies for the UPC Regime” (winning in the litigation sense?).

Who’s winning? Patent lawyers? Europe certainly would not win, and Battistelli is trying very hard to silence high-level EPO staff that antagonises the UPC, even after leaving the EPO.

The EPO’s FTI Consulting AstroTurfing campaign is becoming quite a disaster. Once made visible and known to more people, everything the EPO does looks like manipulation of media. What on Earth was Battistelli thinking? The implications of this are severe and even French politicians are complaining about it (we still need a translation from French, both of the letter and of this new article).

It is starting to look more plausible (or probable) that IAM blocked many people because it had become the girlfriend of Battistelli and the EPO. Trying to defend such a relationship isn’t easy. FTI Consulting is essentially an EPO purse right now, serving as somewhat of a proxy, almost like a money-laundering operation (budget for one year: nearly $1 million). Just watch what FTI Consulting apparently did for fracking clients.

“Just watch what FTI Consulting apparently did for fracking clients.”We have researched this a little further and found that, based on tweets such as this, the site’s section has been around for at least a week (maybe a lot longer).

whois.net lookup shows “Creation Date: 11-sep-2014″ and does not reveal who registered it. We previously saw how lobbying groups or front groups of Microsoft hid their lobbying domains quite cleverly but then exposed that. Looking a little deeper (identity is partly concealed) we find who set up the domain:

Admin Name: Christopher Proud
Admin Organization: Globe Business Publishing
Admin Street: New Hibernia House
Admin Street: Winchester Walk
Admin City: London
Admin State/Province: London
Admin Postal Code: SE1 9AG
Admin Country: GB
Admin Phone: +44.2072340606
Admin Phone Ext:
Admin Fax: +44.2072340606

There was also an event for patent trolls organised just months after this site’s setup. Is this a way to start a venture? Collecting money from trolls to promote trolls or at least improve their image? Others do so too and when challenged online they failed to defend it.

“Shameless lobbying with the veneer of an ‘independent’ ‘news’ site. Clever stunt from FTI Consulting?”See the “NPE 2015″ pages. Among the sponsors (which paid IAM) were infamous anti-Linux, Microsoft-connected trolls such as MOSAID (renamed since) and Acacia, both as “Gold” sponsors. They’re joined by other trolls, famous lawyers of trolls, and Microsoft-connected aggressors like Finjan. There’s no FTI Consulting in sight, so the EPO connection (not the IAM connection) seems likely to have put them in the UPC event. Among other sponsors we only see the world’s most vocal proponents of software patents, which serves to reinforce our perception of the principal forces behind UPC.

Isn’t that wonderful? Shameless lobbying with the veneer of an ‘independent’ ‘news’ site. Clever stunt from FTI Consulting? Or will it simply backfire? █

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12.18.15

EPI Silently Removes Criticism of the European Patent Office/Organisation, Techrights Preserves It

Posted in Europe, Patents at 7:12 pm by Dr. Roy Schestowitz

EPI’s deleted page

Summary: The European Patent Institute (EPI) mysteriously takes down its Web page which politely suggested that the EPO should soften its heavy-handed moves against boards and staff/unions

WE ALREADY know that Benoît Battistelli’s EPO has escalated its war on information to threats or retaliation against publishers, potentially impacting some of the world's largest.

“What does this say about the EPI?”As recently as one day ago the EPI presented criticism of the EPO (shown above, except the older enclosed PDF and the latest PDF). Well, the EPI has just removed its criticism of the EPO from its site (we also tested the CMS to ensure that this was definitely a deletion and not some technical error). What does this say about the EPI? Did the EPO get in touch? Perhaps some members? Why the sudden self-censorship?

We first became aware of this because of the following comment that said: “There is a very strange new trend of webpages suddenly disappearing. I just turned up the following in a Google Search… And then I went and clicked on the link: http://patentepi.com/de/epi/news/24 And what did I get [...] An Error Occurred… The server returned a “404 Not Found”… Something is broken. Please let us know what you were doing when this error occurred. We will fix it as soon as possible. Sorry for any inconvenience caused. ”

“Sadly for EPI, self-censorship or attempts to censor another party often have the opposite (and undesirable to the censor) effect.”A later comment pointed to Google cache and another comment said: “Here you are. Google does not forget…”

Sadly for EPI, self-censorship or attempts to censor another party often have the opposite (and undesirable to the censor) effect. We wouldn’t be shocked if, now that people publicly embarrass the EPI and restore the deleted page by making mirrors/copies, the EPI itself will put it back online and pretend it was all just an accident (this is a common face-saving routine). █

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EPO Irrelevancy, Two Decades to be Granted an EPO Patent, Outrage Over Patents on Plants in EPO

Posted in Europe, Marketing, Patents at 4:07 pm by Dr. Roy Schestowitz

Besieged from many directions, the EPO can’t just ignore bad news, only attempt to bury these by manufacturing ‘good’ (somewhat faked) messages to be embedded in news sites

Summary: A roundup of this week’s news (with focus on late week in particular), serving to show what the EPO’s management is really up against when it comes to shifting public opinion

Benoît Battistelli’s EPO has paid truly outrageous amounts of money to seed the press with positive publicity. It’s more or less clear why Battistelli wants and needs that. The EPO has become a byword for gross institutional abuse not just in Europe but internationally. Battistelli paid nearly a million dollars for an international firm (based in Washington) to whitewash the EPO in a period of one year. That’s almost $100,000 a month in out-of-the-ordinary (additional) PR budget. Good use of budget? What next, private limousines for Battistelli? There are rumours that he wants these too, having gotten tired of just private bodyguards.

Battistelli’s focus (as of late) on PR has been rather gross or crude. The greenwashing aside (it’s now a fortnight old), there is the “compliance” spin right now. Here is a new puff piece derived from this EPO spin, as covered here the other day. What is this, “media presence” again?

“The EPO has become a byword for gross institutional abuse not just in Europe but internationally.”Let’s look at some real news, not regurgitation of official press releases (seeded in epo.org and probably sent en masse to thousands of lazy journalists all across Europe). After the press release about the Unitary Patent (which the EPO openly lobbies for) we even found this article whose headline can be translated into “Unitary patent system in the EU on the spot” (according to EPO). Is this the desired outcome of the PR campaign? Either way, it only tells part of the story and is an effort at self-fulfilling prophecies.

Days ago in PTAB Watch we spotted this article which said: “With respect to the European patent, despite the acknowledgement by the PTAB that laws and rules are different in Europe, and a previous PTAB decision (Volkswagen Group of America, Inc. v. Emerachem Holdings, LLC, Case IPR2014-01557, slip op. at 15 (PTAB Mar. 16, 2015) (Paper 13)) that held that whatever happened in the European Patent Office (“EPO”) is essentially irrelevant, the Board determined that the European prosecution history evidence was probative of whether a cited reference is analogous art to the patent under review, and admitted the evidence for this limited purpose. The Board also determined that the post-dated publications submitted in District Court litigation that discussed terms and features recited in the claims were relevant to show how the Patent Owner had been interpreting its claims during proceedings to enforce the patent.”

“The thing about the EPO is, it’s going nowhere fast and heading into irrelevancy.”The significance of this in light the recent events and the context (see full article for details) is that there’s not much respect for the EPO’s judgment. As the article put it, “whatever happened in the European Patent Office (“EPO”) is essentially irrelevant” (irrelevancy or irrelevance imply there is no perceived superiority over the decisions or judgments in the US).

The thing about the EPO is, it’s going nowhere fast and heading into irrelevancy. Battistelli has accelerated this by orders of magnitude because the dysfunction increased in many areas (or aspects) and new areas of dispute emerged; it used to be mostly about patent scope. Not many people would bother pursuing patents at the EPO unless it maintains a high enough quality to justify the high cost. The EPO charges a lot of money (application and renewal fees from applicants) for several examiners to examine together/simultaneously, but the Office still rushes the process (speed over accuracy). No wonder EPO patents such as those granted to Apple are later -- once scrutinised by a court -- get invalidated. It serves to show that Battiselli’s approach shames the Office and harms its reputation.

“19 years to be granted a patent!”Eversheds International, an international legal practice, mentioned the EPO a couple of times yesterday [1, 2], reminding us of Baxter's notorious patent application at the EPO.

Eversheds wrote: “The patent was only granted by the European Patent Office (EPO) on 27 November 2013, despite having been filed on 9 July 1994, with a priority date of 19 July 1993. The extraordinarily long examination stage (19 years), meant that the period of effective patent protection was less than 1 year. Had a SPC been granted, its duration would have been approximately 3.5 years, a highly desirable extension to the term of patent protection.”

Got that?

“In Twitter too we were told by lawyers about patents which took two decades to process, so the above is not an isolated incident.”19 years to be granted a patent! Some people complain about applications taking ten years. In Twitter too we were told by lawyers about patents which took two decades to process, so the above is not an isolated incident. People right here in the UK experience the same thing when they apply at the EPO.

More interesting in the media right now is actually the response of (real) journalists to this statement from the Parliament. The EPO is under attack from the European Parliament because it compromised patent scope/quality for the sake of short-term profit.

One new article says: “A ban on the patenting of products obtained by conventional breeding techniques, such as crossing, is essential to sustain innovation, food security and small businesses, says a non-legislative resolution voted by the European Parliament on 17 December.”

“This is a good example of patent scope gone awry for the sake of profit and protectionism for large corporations such as Monsanto.”EPO is being shamed in this article, which is one among many (some non-English sites have covered this too). EUbusiness wrote about it and noted that “No Patents on Seeds! is an international coalition of civil society organisations. It recently published a report containing an overview of patents granted by the EPO and a legal analysis. The report further highlights the need for more political action.

“The call made by the international coalition No Patents on Seeds! to stop these patents has the support of several hundred organisations all over Europe. The coalition No Patents on Seeds! is supported by Arche Noah (Austria), Bionext (Netherlands), The Berne Declaration (Switzerland), GeneWatch (UK), Greenpeace, Misereor (Germany), Development Fund (Norway), NOAH (Denmark), No Patents on Life (Germany), ProSpecieRara (Switzerland), Red de Semillas (Spain), Rete Semi Rurali (Italy), Reseau Semences Paysannes (France) and Swissaid (Switzerland). They are all calling for a revision of European Patent Law to exclude breeding material, breeding processes, plants and animals, their characteristics, their genetic components, the harvest and food derived thereof from patentability.”

“The latter involves Gillette, so we cannot help recalling the intervention of Željko Topić regarding razor blades in Croatia.”This is a good example of patent scope gone awry for the sake of profit and protectionism for large corporations such as Monsanto. Some companies are now spreading press releases about EPO patents on drugs and there are articles about US patents as they’re being used for protectionism and monopoly (to protect a notorious business model). The latter involves Gillette, so we cannot help recalling the intervention of Željko Topić regarding razor blades in Croatia. █

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Benoît Battistelli: “An Earthquake Would be Needed for the Administrative Council… Not to Support My Major Proposals.”

Posted in Europe, Meeting, Patents at 2:56 pm by Dr. Roy Schestowitz

Team Battistelli (high-level EPO management) is trying to shoot — metaphorically like a sniper — Elizabeth Hardon, a staff representative (apparently a “major proposal”)

Summary: Sessions of the Administrative Council dissected; Reports from the Office serve to show how grim things have become for all staff unions, not just SUEPO

FOR anyone still in doubt about Benoît Battistelli’s megalomania, we humbly suggest the first, second and third part of this ongoing series (together with the teaser) as preparatory reading. The EPO has become somewhat of a laughing stock because the President of the EPO not only stomps on the law but also brags about it. That’s the hallmark of sadistic tyrants — those who view themselves as kings of the universe (which nobody is allowed to disagree with, no matter how high up). Famous examples include Stalin, who made a habit of ‘vanishing’ his perceived opposition.

“Il faudrait un tremblement de terre pour que le conseil d’administration, où chacun des 35 États membres a une voix, n’accorde pas son soutien aux propositions majeures.”
      –Benoît BattistelliToday’s situation report, which is circulating among EPO staff, reveals how atrocious things have become inside the EPO. It begins with a quote from the infamous Usine Nouvelle interview from 2012 where Battistelli bragged how free of any constraints he is. Or in other words, how totally unaccountable he is. To quote the original (in French): «Il faudrait un tremblement de terre pour que le conseil d’administration, où chacun des 35 États membres a une voix, n’accorde pas son soutien aux propositions majeures.»

That’s from Battistelli’s own mouth. Translation from French-speaking people (whom we have been in touch with) would be: “An earthquake would be needed for the Administrative Council, where each of the 35 member states has one vote, not to support my major proposals.”

Amazing, isn’t it? Until you consider what Battistelli’s character is like…

Based on some comments that we are seeing in IP Kat right now, Team Battistelli is fast-tracking the union-busting ahead of Christmas, even a week ahead of Christmas Eve.

One recent comment says: “Battistelli was told by the council to renew social dialogue and stop harassing the representatives of the personal and he was, apparently, told privately by the French and Dutch delegations to stop the ongoing disciplinary procedures but he is still in post. What will he do next?

“There are 3 members of the staff union who are attacked in Munich. I think that all 3 hearings have been rushed through this week, so that the president can publish his 3 decisions before the end of the year. From what has been published from the procedure, it is obvious that this is a mock trial. There are simply too many procedural violations for the procedure to be believable.

“Battistelli was told by the council to renew social dialogue and stop harassing the representatives of the personal and he was, apparently, told privately by the French and Dutch delegations to stop the ongoing disciplinary procedures but he is still in post.”
      –Anonymous“Will the president do what he was told by the council, stop the disciplinary procedures and reintegrate the 3 representatives? Or will he show the council that they are powerless to stop him and fire all 3 nevertheless?

“He can stop the disciplinary procedures, the service regulations allow him to do so. The disciplinary committees can find all 3 guilty, the president is still allowed to ignore their findings and reintegrate the 3 representatives. This is what he was explicitly instructed to do so any other decision will be contrary to the instructions of the council.”

Battistelli has been trying to halt communications so that they can do mock trials in secret. As another commenter put it: “What a pity that Merkel has failed to report on a fifth “remarkable” letter:

“Battistelli has been trying to halt communications so that they can do mock trials in secret.”“Namely, the “warning letter” sent by the President of the EPO to the Chair of the Presidium (VP3) telling him to be careful about contacts between the Presidium and the AC which had not received prior authorisation from the President of the EPO.

“Now that’s a letter that would make interesting reading.”

Remember how politely the Presidium of the Boards put it. It has since then been cited by at least 3 formal complaint letters [1, 2, 3].

Based on the latest comments in IP Kat, some people are still not sure what happened in the meetings/sessions which started and ended this week. We have some yet-unverified claims (pertaining to boards and unions), but based on the following report, this is what actually happened and it’s similar to what commenters in IP Kat had predicted:

I- Earthquake?

Fact is that during this Session, the AC has unambiguously criticised and NOT “given its support” to no less than 3 “major proposals”:

1. …the opening speech gave the opportunity to delegations to express their disagreement with the analysis of the President on the situation in the Office

2. the Tax-adjustment was purely and simply rejected

3. the paper on Orientations for the structural reform of the EPO Boards of Appeal was purely removed overnight from the agenda (see point II)

4. even the review of the service regulation did not make it on the agenda and an overnight reworked revised version was only accepted after controversial discussions

It may not solve our urgent problems directly but the above seems to indicate that if not an earthquake, major tremors have emanated from the AC epicentre.

After 3 AC sessions during which delegations expressed subtle warnings though means of abstentions and critical remark, their message is now less diplomatic and this president has been stopped for the first time ever.

One can hope that clear instructions have also been issued by the AC regarding how to deal with the staff, the staff representation and the suspended colleagues, as some of the statements in plenum seem to indicate, but nothing is less than sure. And one can hope that the powerful will not vent their frustration on those the powerless staff they administer (see point IV below).

II- DG3 reforms: “Gimme that toy before you break it entirely…”

As mentioned above, after the Confidential session, the reform was removed from the agenda and replaced by an exchange of view in plenum. It essentially suggests that the B28 is put in charge of this dossier and comes, after another consultation, with a reviewed proposal.

Surprisingly, it is the Swiss delegation by the voice of Mr. Grossenbacher, that seems to have taken the lead^* in reformulating the reform proposal. As a side note, it is remarkable, since the present administration is the very product of this powerful man sitting a AC president for years and who has initially suggested the whole HR reforms and what many call and “autocratic” management style rolled out by the present administration: a “Brutus-situation” the other way around?

In essence, the proposal seemingly should be refocused on the following elements (to paraphrase the Swiss delegate):

1. “The seat issue is less important. It appears to us irrelevant. The Boards of Appeal can stay where they are, in the Isar building. This costs nothing and does not harm the independence.“

2. They suggest “to exclude The Cooling-Off Period”, preventing employment after EPO life.

3. For the appointment and reappointment of DG3 members, the right of appointment must be transferred to the President of the Board of Appeal.

4. The Rules of Procedure should not be proposed by the Office President.

5. The budget should be prepared to be then submitted to the Council as in CA/16/15

6. The Board of Appeal Committee should be established by the Council alone. The Committee serves to foster dialogue. The decisions should be taken by the Council. Six members should have the Committee, three by the Council and three from the Boards of Appeal. No observer, but the President of the Boards of Appeal and others can be invited.

7. The wage system should be committed to performance however, the modalities of which should be worked on later however, handling should remain solely with the President of the Boards of Appeal.

8. The timeframe: new proposal by March 2016.

It is too early to comment on the new direction but so much seems clear: it seems to have changed towards insuring truly more independence. However, in the light on the complexity of the issue we can simply wish them good luck with this challenging timetable.

III- Suspense and suspension: ad vitam eternam is removed but…

The original reform proposal regulating the suspension of staff (Art.95, planned by Mr. Battistelli to be without limitation in time) was replaced overnight. The revised version tabled lead to somewhat confused or confusing discussions in plenum as the new wording was discovered by many during the session. The final document can be found now on MICADO.

In essence, the delegations recognised the problem with having a 4 months time-limit for employees nominated by the AC, which seems incompatible with the rhythm of 3 to 4 planned plenary sessions per year but seem to have understood that the removal of any maximum time limit is abusive. It is thus suggested to keep the 4 months for all staff and as a compromise change it to up to 24 months for appointees of the AC. In how far, such a legal uncertainty for a judge is seen as adequate by the delegations seems well above my pay-grade…

On the retroactivity on running cases – which leads this reform to be dubbed by some outside observers as a special rule exclusively targeting the suspended DG3 judge – the debate was heated: some delegations considered the legality of such a proposal “questionable” and in fine, it led to DE and NL to vote against the proposal. All considered, the proposal found a large majority with 32 in favour, 2 against (DE, NL) and 4 abstentions (GR, SK, SE, FR).

IV- Lost in suspension: “and the winner is…”

Wednesday and Thursday the Member States representatives made certainly a remarkable step towards taking concrete actions. Today is Friday and “real-life” goes on with its train of bad news… The dust has not settled yet and the Disciplinary Committees are taking the next steps on very practical cases, touching the lives of colleagues who should be focusing on Christmas and their families or friends instead.

The bad news is that the Disciplinary committees seem to work as if nothing happened. In the first concrete case of Ms. Elizabeth Hardon the recommendation has fallen and is unambiguous. We can unfortunately expect her dismissal at short notice. Under these conditions, little hope remains for the other two colleagues who are still expecting terrific news.

The next week will tell us if the president has been given clear instructions or only polite indications during the Administrative Council.

But honestly, hope is slim that these colleagues are given a chance to a fair trial given the procedure so far.

V- Personal comments: it can’t go on like this, this is not a life!

[...] the staff representation office-wide has been decimated and many of its actors are getting at a point where they are either sick, suspended, resigned or Els(e)… This cannot go on.

Statistically spoken, as can be seen from the paper “Social Democracy: Staff Representation dismantling is on track!” we used to have ca. 200 staff members working on behalf of Staff representation in the past with an average of ca. 40 men years. It represented in 2012 a total of 8900 days, e.g. a yearly 1,2 day per staff member. Now the December Dashboard shows EXCATLY 3281 days, e.g. less than 0,46 day per staff member. Such statistics mean preciously little when you live it but they can be a pale indication to an outsider.

The EPO makes no secret of the fact that it not interested in the Staff opinion and even less its staff representation but everybody knows that already.

That fact per se is dangerous enough for any institution. Evolution has shown that an organism without feedback loops is bound to fail.

My opinion is to let people work under these conditions is grossly negligent.

And, as in the above mentioned cases, attacking them at the same me is purely and simply criminal. (if not legally than at least morally)

In short, it seems likely that the EPO will officially fire a staff representative for allegedly speaking to a blogger (not me), allegedly speaking to a judge, and something about "sniper" (just a cheap personal attack on the accused). This serves as a warning shot or — pardon the pun — sniping of a staff representative to scare all others. If this doesn’t constitute union-busting, what is?

“Battistelli was trouble for the EPO all along.”Battistelli must be furious that his power over the delegates is rapidly eroding, so he looks for a scapegoat and tries to demonstrate his alleged superpower in order to restore his old reign of terror. History teaches that moves such as these are short-lived and doomed to fail. But who are the sacrificial lambs to be martyred?

Battistelli was trouble for the EPO all along. It’s him and his new high-level recruits that need to go, not the decades-long representatives of staff, whose endorsement/popularity among staff was very much evident in recent public protests. █

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