03.26.16

Finishing Icahn’s and Ballmer’s Job: Microsoft Wants to Kill Yahoo! and Exterminate GNU/Linux in Datacentres

Posted in GNU/Linux, Google, Microsoft, Search, Servers at 11:43 pm by Dr. Roy Schestowitz

Microsoft uses its money to interfere with and/or take over the competition

“Linux infestations are being uncovered in many of our large accounts as part of the escalation engagements.”

–Microsoft Confidential

“I’m going to f—ing bury that guy, I have done it before, and I will do it again. I’m going to f—ing kill Google.”

–Steve Ballmer, Microsoft CEO

Summary: Microsoft’s war on GNU/Linux and against Google is still alive and well, and Microsoft uses its money (what’s left of it) in an effort to get its way and basically undermine (or E.E.E.) the competition

According to this second-hand report from Sam Dean about Microsoft's DCOS buddies, “Microsoft has been rumored to have had its eyes on owning the company” (company behind DCOS, which is proprietary). 8 months ago we wrote about the real reason Microsoft veterans were investing in Mesosphere.

“8 months ago we wrote about the real reason Microsoft veterans were investing in Mesosphere.”What we basically deal with here is another Xamarin, again funded by people from Microsoft, only to be the subject of Microsoft acquisition (or attempted acquisition) later on. Microsoft actually did try to take over DCOS and make it its anti-GNU/Linux proxy. It’s half way there now because there are financial strings now. Dean cites a Microsoft booster (Matt Weinberger) as saying that “Microsoft is investing millions in a $1 billion startup that rejected its acquisition offer” (the headline).

To quote Weinberger: “Last year, reports emerged that Microsoft tried to buy Mesosphere, a hot cloud computing startup, for $150 million, only to get shut down.”

“What we basically deal with here is another Xamarin, again funded by people from Microsoft, only to be the subject of Microsoft acquisition (or attempted acquisition) later on.”So that’s a fact. At Mesosphere they ‘just’ took Microsoft money and hence strings, so it’s clear whose agenda will be served. EEE against GNU/Linux must be noted here. To quote further: “Mesosphere is announcing a new $73.5 million “strategic” investment, led by Hewlett Packard Enterprise, and with Microsoft listed as a “significant participant.””

It’s time to treat Mesosphere as a Microsoft proxy; little less, only more.

In related news, Microsoft is killing Yahoo again. Yahoo is not totally dead yet; it’s now run by a lady from Google, so the company apparently needs to die or be hijacked again by Microsoft. Microsoft Peter (Peter Bright) and Swisher make it abundantly clear that Microsoft is still a predator, not a real company. Based on Microsoft Peter’s article: “After Microsoft’s failed bid to buy Yahoo, the two companies signed agreements that would see Microsoft providing both search technology and advertising to Yahoo. While the terms of this deal have changed, with Redmond losing its exclusive arrangement last year, Yahoo nonetheless remains an important partner. Bing’s market share continues to grow each quarter, and Yahoo’s use of Bing search results is a key part of this success. [note: that’s a Microsoft lie/revisionism from Peter Bright]

“It’s time to treat Mesosphere as a Microsoft proxy; little less, only more.”“Redmond is keen to protect this important deal. Offering a private equity firm a billion or two in cheap financing would enable the company to preserve this partnership, while being substantially cheaper than buying the company itself. In spite of its previous interest, sources within Microsoft tell Swisher that it has no interest in buying Yahoo this time around. Companies that are interested are believed to include AT&T, Verizon, and Comcast, along with a number of private equity firms.”

The New York Times, having come up with an eye-catching headline (unlike the spin from Microsoft Peter), says the “Entire Yahoo Board Would Be Ousted”. This sounds like the same thing which Microsoft did with Icahn almost 8 years ago.

“This sounds like the same thing which Microsoft did with Icahn almost 8 years ago.”The spin from Microsoft Peter says “Microsoft said to be wanting to help out Yahoo buyers with its own cash”; iophk responded with “if you twist the word ‘help’ enough.”

Another reader of ours laughed and wrote in IRC “mafia “help”” (hey, maybe they can send in Icahn again!).

Raiders, proxies, corporate coups — a Microsoft specialty. Maybe they’ll actually become a technology and software company one day. We covered in great detail what Microsoft had done to Yahoo! in the past in order to convert it from a third (or second) contender in search engines into just another ‘department’ of Microsoft. Microsoft did the same thing to Cyanogen (now a Trojan horse against Android/Google), Nokia, and it also ‘helped’ Novell (only to see the company dying within a few years, as expected, leaving the patents to Microsoft).

“…Microsoft is unmistakably still going after Yahoo after killing the vast majority of it.”Looking at another report about this, titled “Microsoft Tells Possible Yahoo Buyers It Would Consider Backing Bids With Big Bucks”, Microsoft is unmistakably still going after Yahoo after killing the vast majority of it.

It “looks like Yahoo is selling out,” said Mark in our IRC channels earlier today, adding that “they are looking to sell their core business; I’d say they are on the way out in any case; they lost what… 4 billion dollars last year?”

“Microsoft is the touch of death to almost everything…”
      –Mark, #techrightsThis is like classic Microsoft revisionism, however, e.g. for one to claim Yahoo was all along down and still going down (or that Microsoft tried to save them and help them). They were doing reasonably well before 2008 (like Nokia or Novell) and they do extremely poorly now; Microsoft’s intention has a lot to do with it. That’s like saying Novell failed in spite of Microsoft or that Microsoft tried to rescue Novell.

XRevan86 notes that “moving to Bing for Yahoo! was a total disaster.” It was indeed; it was a one-way relationship that destroyed the very core of Yahoo! and turned it into a vassal of Microsoft. There was no way back after that. The company was in a freefall.

“Microsoft is the touch of death to almost everything,” Mark concluded. █

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Corporate Media Lies About ‘Market Share’ of Vista 10 the Same Way It Did About Vista

Posted in Deception, Microsoft, Vista, Vista 10 at 10:21 pm by Dr. Roy Schestowitz

Both were terrible in terms of acceptance, so rigged statistics (biased by selection) come to Microsoft’s rescue and wrongly generalised/extrapolated!

Pro-Microsoft sites (the above is a Microsoft advocacy site) have a new ‘source’ to lean on, just like the Microsoft-connected Net Applications

Summary: New examples of Microsoft-leaning brainwash, telling us that Vista 10 is a “success”, just like “Microsoft loves Linux”

AS we noted here the other day, Vista 10 is now being compared to Vista (even in the corporate media). Both are massive failures that Microsoft prefers to forget about. Just look at the latest financial results; it’s chaotic. At the same time, Microsoft is desperate to convince the public to adopt (if not force the public to adopt, as in the case of Vista 10, through covert ‘updates’, not just secret OEM deals) based on the false perception that “everyone else is doing it!” and it’s “inevitable” (or something along those lines).

“Digital Analytics Program (DAP) is quite meaningless and not a proper indicator of market share (never mind if inside the US or outside of it).”Microsoft must be frustrated that people aren’t as gullible as Microsoft needs them to do. The ordinary people know that Vista 10 is terrible and many people actively avoid it by all means possible (even if that means not buying a new PC, or only buying a Chromebook or something along these lines). Microsoft’s ability to fool the public is surely eroding. The typical folks know they don’t need Windows anymore and they know that Microsoft cannot love FOSS. As Christine Hall has just put it: “As for Microsoft’s continuing open sourcing? There’s nothing new here, move on. When Redmond loves Linux and open source enough to quit suing open source projects over patents it claims it has — that will be news.”

We were rather disturbed to find this new IDG brainwash titled “Windows 10 passes 20% share in the U.S.”

“The title and the summary say very different things,” iophk wrote to us. “This reeks of desperation.” Did the editor at IDG choose this misleading lie? IDG equates “Digital Analytics Program” with “share in the U.S.” What next? Digital Analytics Program (DAP) is quite meaningless and not a proper indicator of market share (never mind if inside the US or outside of it).

“Don’t be so shocked that DAP is Microsoft Windows-powered and even distributes MS Word files (rather than ODF or PDF).”“For the first time,” says this article, “Windows 10 accounted for more than one-fifth of the visits to sites tracked by the Digital Analytics Program (DAP), which mines traffic to more than 4,000 websites on over 400 different domains maintained by U.S. government agencies, such as the Internal Revenue Service and the National Weather Service.”

Don’t be so shocked that DAP is Microsoft Windows-powered and even distributes MS Word files (rather than ODF or PDF). Something doesn’t smell right. DAP has been used to disseminate other pro-Microsoft talking points at IDG (same writer). A lot of government employees are simply forced to use Windows and are not given a choice of browser, version, etc.

Next up: let’s judge the market share of GNU/Linux in the US based on universities’ research departments. █

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Patents Roundup: SCOTUS, U.S. Code § 101, CAFC, PTAB, and Software Patents in the Far East (Australia, Korea, Taiwan, China)

Posted in America, Asia, Australia, Law, Patents at 9:43 pm by Dr. Roy Schestowitz

Software patents are still an issue not just in East Asia but also in Australia, though not in New Zealand

Summary: An outline of recent news regarding software patents, patent trolls, and other such aspects which have considerable impact on Free software development

SCOTUS

“The Supreme Court should review an appeals court decision,” attorneys told Bloomberg BNA, “to clear up uncertainty about patenting natural discoveries that is chilling innovation.”

One must realise that the logic of “more patents mean more innovation” is based on false reasoning and wishful thinking from self-serving patent lawyers.

“One must realise that the logic of “more patents mean more innovation” is based on false reasoning and wishful thinking from self-serving patent lawyers.”A lawyers’ site, at around the very same time, wrote that “Sequenom Throws Diagnostic Method Patents At Mercy Of Supreme Court” (this isn’t about software patents but also rather abstract patents).

“It comes as no surprise,” says this site, “that Sequenom has filed a petition for certiorari to the Supreme Court, asking the Court to review the Federal Circuit decision that upheld the district court decision that held its diagnostic method claims invalid for failing to satisfy the patent eligibility requirements of 35 USC § 101. With no relief from Congress on the horizon, this filing puts at least the near-term future of diagnostic method patents at the mercy of the Supreme Court. Will the Court agree that its § 101 jurisprudence has been taken too far, or will it decide that diagnostic methods really cannot be patented?”

“Watch patent lawyers who are vocal proponents of software patenting still moaning about Alice.”Patently-O wrote: “The discovery here was that fetal DNA can be found floating around the blood of the pregnant mother and that the fetal DNA can be selectively amplified by focusing on the paternally inherited portion of its DNA (rather than the maternally inherited). Sequenom’s patent claims two simple steps: (1) amplifying paternally inherited DNA from a plasma sample taken from a pregnant female and then (2) detecting the presence of the DNA.”

“This week,” wrote one patent lawyer. “Patents Asserted in 4 US Dist. Cts. Survived Alice/101 Challenges; DE High Ct. Rejected Mayo/Prometheus Test.”

“It’s encouraging to see the long-term effect of the Supreme Court‘s decisions in 2014.”Any patent lawyer would be delighted about such news. Watch patent lawyers who are vocal proponents of software patenting still moaning about Alice. They are incapable of patenting software after Alice and they still try to find new tricks around the new rules.

It’s encouraging to see the long-term effect of the Supreme Court‘s decisions in 2014.

Federal Circuit

Alluding to the Federal Circuit (Court of Appeals for the Federal Circuit), the home and origin of software patents, people from Finnegan, Henderson, Farabow, Garrett & Dunner, LLP wrote about a case we covered here before. The recent Lexmark case was also touched upon again by Patently-O; that was just a few days ago. Patently-O actually covers a lot of CAFC-related matters these days [1, 2] (the latter being Mag Aerospace Industries, Inc. v. B/E Aerospace, Inc.) and this article by Dennis Crouch says that “Shaw Industries v Automated Creel Systems[1] involves several interesting issues involving inter partes review proceedings.”

“Well, actually, in many cases (often overlooked by the pro-patents circles), PTAB rightly invalidates patents erroneously granted by the USPTO.”Another newer CAFC article by Dennis Crouch says: “All three patents (all claims) were challenged in covered business method reviews and found by the PTAB to be ineligible under Section 101 (abstract ideas). In addition, two of the same patents (a subset of claims) were challenged in inter partes review proceedings, but in those cases the PTAB sided with the patentee and found the ISE had failed to prove invalidity (either obvious or anticipated).”

Well, actually, in many cases (often overlooked by the pro-patents circles), PTAB rightly invalidates patents erroneously granted by the USPTO. Let’s look at some new examples.

PTAB

As we noted here before, the relatively new PTAB is crushing many software patents. Patently-O did cover the following example several days ago, noting: “In a straightforward decision, the Federal Circuit has affirmed the PTAB’s decision that Cree’s claimed down-shifted LED invention would have been obvious in light of a combination of three prior art patents.[2] The basic problem with LED lighting is that it is easy and cheap (these days) to get blue light, but harder to produce light across the spectrum – especially reds. Cree’s patented approach used a blue LED that is wrapped in a “down-converting luminophoric medium.” The basic idea is that the blue light energy is absorbed by the medium and then released as white light. These Fluorescent and phosphorescent materials were already known and commercially available.”

Perhaps the biggest news regarding PTAB right now concerns Uniloc, which is a notorious patent troll; IAM still calls patent trolling “licensing market” (gotta love their euphemisms, as they make trolling sound so legitimate). As a trolls expert put it:

Patent that cost Microsoft millions gets invalidated

[...]

One of the oldest and most profitable patent trolls, Uniloc, has been shot down. Its US Patent No. 5,490,216, which claims to own the concept of “product activation” in software, had all claims ruled invalid by the Patent Trademark and Appeals Board (PTAB).

The process through which PTAB eliminated the patent is called an “inter partes review,” or IPR. The IPR process, created by the America Invents Act, is an increasingly popular and effective way for defendants to challenge patents outside federal courts.

The PTAB case against Uniloc’s patent was filed by Sega of America, Ubisoft, Cambium Learning Group, and Perfect World Entertainment. The board found that every claim in Uniloc’s patent was anticipated or rendered obvious by an earlier patent.

“The PTAB decision is inconsistent with two prior rulings by the Federal Circuit and with the opinions of seven patent examiners who previously upheld the validity of the ’216 patent in multiple reexaminations,” Uniloc president Sean Burdick told the Kansas City Business Journal, which reported the decision earlier this week. “Ultimately the PTAB gave undue credibility to a lone expert opinion that was authored by petitioners’ counsel. Congratulations to [opposing law firm] Erise IP for pulling wool over the eyes of the Patent Office.”

What’s noteworthy here isn’t the name of the troll or even Microsoft; it’s about PTAB killing software patents, just like a lot of courts after Alice. That’s great news. Inherently, the core issue is patent scope and software patents in particular.

Venue Act

A small step towards countering patent trolls by limiting venue shifts (a la Venue Act/VENUE Act [1, 2]) was mentioned the other day at MIP but in reference to CAFC. “The Federal Circuit ruling in Acorda v Mylan and AstraZeneca v Mylan,” MIP explained, “gives branded pharmaceutical companies more flexibility in their choice of where to file suit against generics” (as if that’s a good thing). CAFC was also mentioned by more vocal patent maximalists, who constantly bemoan the difficulty now associated with getting software patents (or successfully suing with them).

“Inherently, the core issue is patent scope and software patents in particular.”More noteworthy, however, was the mentioning of the Venue Act in corporate media (GOP-leaning). This attracted some strong reaction from Twitter [1, 2, 3]. Basically, unsurprisingly, right-wing news sites don’t like the Venue Act. “It is time to confront the bias against patent owners in patent ‘reform’ legislation,” wrote the author, later noting: “The absence of any acknowledgment that reform of the PTAB is just as pressingly important as venue reform by those pushing for the VENUE Act is a massive elephant in the room. Unfortunately, it is unsurprising. But this is only because it is the latest example of a strikingly one-sided, biased narrative of the past several years about patent “reform.””

It oughtn’t be so shocking that GOP-leaning papers such the Washington Times are against reform. We wrote about the GOP stance on patent reform many times before.

Software Patents in Australia

“It oughtn’t be so shocking that GOP-leaning papers such the Washington Times are against reform.”A country heavily influenced by the US (see trade agreements for recent evidence) apparently still allows software to be patented (we wrote a great deal about it in past years). As patent lawyers put it the other day (in International Law Office): “In the last few years three subject matters have been lurking on the fringes of patentability: methods of treatment, genes and software. The US Supreme Court has confirmed that, at least for the moment, none of these is eligible for patent protection.(1) In Australia, the High Court recently considered methods of treatment (which are generally patentable)(2) and isolated naturally occurring genes (which are not).(3) Now the High Court may have the opportunity to consider the extent to which software is properly the subject of patent protection in Australia.”

There is a software patents story coming out today. It’s coming from Patentology. It is titled “Upaid v Telstra – Here’s How We Deal With NPEs in Australia!”

To quote the article: “Upaid Systems Ltd is a ‘non-practising entity’ (NPE) – sometimes referred to as a ‘patent troll’ – which sued Australia’s largest telecommunications carrier, Telstra Corporation Ltd, back in August 2013 for the alleged infringement of two Australian patents relating to making online purchases of goods and/or services from mobile devices. More specifically, Upaid alleges that various subscription operations performed in relation to Telstra’s MOG online music streaming service (formerly Bigpond Music) infringe its patents when conducted using a mobile device. [...] As Upaid has discovered to its detriment, the Australian Federal Court Rules require substantial detail to be provided in relation to the activities said to constitute infringement. In short, in this country it is nowhere near enough to run around pointing fingers at alleged infringements on the basis that they might look, walk and quack a little bit like a claimed duck. You need to provide sufficient information, at the outset, to inform the accused infringer fairly precisely of the case they will be required to answer.”

“Yes, that’s what the US has been plagued with, and what UPC threatens to bring to Europe. Patent trolls just love software patents. Everyone is rendered sue-able (or possible to secretly settle with).”What we have here is a patent troll in Australia using software patents. Sounds familiar? Yes, that’s what the US has been plagued with, and what UPC threatens to bring to Europe. Patent trolls just love software patents. Everyone is rendered sue-able (or possible to secretly settle with).

Software Patents in China

International Law Office has this analysis from Taiwan about patent assignment and other such matters. China is increasingly relying on patent bubbles to put up or make up an illusion of growth (or piles of paper). It’s the mistake the USPTO has made by lowering standards. Too many patents are now suspect and the patent system simply lost credibility. Courts overrule it aplenty.

Take note of this new article from Lexology whose headline says “China Again Fastest-growing Origin for EPO Applications”. This is based on EPO lies (Mandarin-only patents), as we noted here before [1, 2]. As this new comment from the same day put it, “I can rely on EPO Examiners. But can I rely on EPO management? I’m not sure.” They have different goals; one group wishes to do proper examination and the latter — inflation, ‘growth’ (however it gets measured), and so on. One group is scientific (like climate change scientists), whereas the latter is recklessly capitalistic (like oil companies) without boundaries, without long-term thinking.

“China is increasingly relying on patent bubbles to put up or make up an illusion of growth (or piles of paper). It’s the mistake the USPTO has made by lowering standards. Too many patents are now suspect and the patent system simply lost credibility. Courts overrule it aplenty.”Well, patent lawyers just want patents in China (more money for them because it’s a big country), so in Lexology on Saturday we found this article titled “Patenting Software in China: What Do You Need to Know”. This also covers the EPO, despite software patents not being allowed in Europe. To quote: “This article provides practical tips of protecting software inventions in China, as well as discussions with trends in practice and comparisons among different patent offices, the State Intellectual Property Office (SIPO), European Patent Office (EPO) and the United States Patent and Trademark Office (USPTO).”

Software Patents in Korea

Patent troll MPEG-LA, according to this article from IAM (very softly-worded when it comes to trolls), gets patent tax money in Korea (indirectly). Again, this is all about software patents. Wherever software patents are foolishly being tolerated the patent trolls quickly flock and tax everyone. It’s detrimental to whole economies and the tax is overlooked by almost everyone.

“Wherever software patents are foolishly being tolerated the patent trolls quickly flock and tax everyone.”Isn’t it sad that the US, which made software patenting possible in the first place (CAFC), is still influencing other countries on that matter, having them blindly accept software patents simply because the US does, as if US law is now universal law? █

“America is much more than a geographical fact. It is a political and moral fact – the first community in which men set out in principle to institutionalize freedom, responsible government, and human equality.”

–Adlai Stevenson

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Links 26/3/2016: Docker Reaches Out to Proprietary, Slacklive

Posted in News Roundup at 12:23 pm by Dr. Roy Schestowitz

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Ingve Björn Stjerna’s New Book About the Unitary Patent (UPC) and Why It’s Important

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

UPC is antidemocratic and the public is not being consulted at all about it

“It`s not the voting that`s democracy; it`s the counting.”

–Tom Stoppard

Credit: ZBM patents

Summary: Roundup regarding the Unitary (or Unified) Patent Court, the latest incarnation of a long-going and nym-shifting effort to transform Europe’s patent law, culminating in the publication of a detailed new book from Dr. Ingve Björn Stjerna

THE UPC is not a new thing. It’s just the latest name of an old thing. I have personally been writing about it for many years and so have few people (other than patent lawyers and politicians) including Ingve Björn Stjerna. Going back to the Charlie McCreevy days (around 2008) and the Michel Barnier days (around 2010), it should quickly become abundantly clear that no matter how much resistance Europeans put up to stop this antidemocratic process, it just keeps coming back, usually with a new name that nobody knows anything about. Earlier this week MIP published this interview with Carol Arnold of Shell (yes, that Shell). Unsurprisingly, this covered the UPC. It said that “plans for the UPC have been met with mixed feelings. As the procedure for judge selection continues, many remain optimistic about the Court, while others become increasingly fearful about the prospect of forum shopping and patent abuse.”

We have already written many dozens of articles about the UPC, in addition to hundreds more about the same thing under another name (e.g. “Community patent”). What will it take to stop this injustice? Well, in our experience, the best way to deal with this issue is simply inform people, whereupon those who promote this thing become too shy to promote it in public (it’s career suicide) and everything cools down until the next rename, accompanying a new lobbying push.

Dr Ingve Björn Stjerna from Düsseldorf, Germany (we have mentioned him here several times in the past, e.g. [1, 2, 3]) was often cited here for his detailed analyses of the UPC. Not too surprisingly, based on some blog posts, he now has a book which costs nearly $100. As a patents-centric blog put it the other day, “German attorney and Certified Specialist for IP Law Ingve Stjerna is known to our readers as an alert and critical commenter of the UPC legislation process (see posts here, here, here, here, here) and constitutional issues. I do not know what was the reason to abandon the Opt-Out-fee but I think that Ingve’s convincing arguments might have played a role.”

Some of these helped show the role of Battistelli in UPC lobbying (even half a decade ago). So much for EPO as merely a patent office; it intervenes in policy.

Here is the cover of the book:

Stjerna’s book is already having some impact. Pro-UPC circles seem a tad worry. One who has criticised the lack of UPC transparency and some legal shortcomings says: “New book on #UPC – ‘The Parliamentary History of the European “#UnitaryPatent”‘ by Dr Ingve Björn Stjerna” (linking to the reviews/purchase page).

When a UPC critic (even if diplomatic/polite) writes a whole book it really means something because never before was there such an extensive body of information about the UPC in one single place. This book on the “unitary patent package” might actually give politicians — if not patent lawyers too — something to think about before blindly accepting the UPC as something beneficial because “unity” or “community” or some other euphemisms along those lines (calling it “Corporate patent” or “Wider litigation patent” wouldn’t be so wise, would it?).

See the new article titled “One Patent Law, Two Economic Sectors: Is The One-Size-Fits-All Patent Law Still Workable?” Another reason why the UPC would be a complete mess, impractical to implement, unworkable in practice and so on? It needs to be abolished before it even becomes a reality — something which would devastate Battistelli and his ilk, that’s for sure.

UPC critics are more widespread then we are generally led to believe because pro-UPC meetings are often restricted to boosters (e.g. by prohibitive costs to attend). Having written about the UPC boosters from Bristows recently, some input was sent to us anonymously. We wrote: “The Bristows folks presently act, e.g. in their blogs, as though Bristows is now a ‘think tank’ (part of the conspiracy of patent lawyers who try hard to make the UK join the UPC). This is a scandalous sham given that the British public is never at all consulted; it’s a sort of collusion, a TTIP/TPP-like corporate heist (with ISDS), and an attack on British democracy (for profits of those who are already super-rich, obviously).”

“Quite right,” a reader told us. “But they’re not the only ones and the British is not the only democracy being mocked here. Keep your eyes open, there’s a lot to be said about this very aspect. For the time being you may find interesting the comment section of this article by Ms Ward.” (she is from Bristows)

I clarified my singling out of Bristows as follows:

Yes, I read all the comments in IP Kat (via RSS feed, usually simplified HTML).

A lot of commenters in IP Kat are themselves patent lawyers and I don’t share their view on the benefits of UPC, not as a programmer anyway.

I singled out Bristows because they’re more vocal than the rest this way and if put under the limelight they might need to tone it down a bit, at least for their reputation (which is the only thing they go by).

I didn’t mention Annsley Merelle Ward, I don’t want to make it too personal. But it’s not just her anyway.

As seen with TPP, companies and people shy away from publicly promoting when the response from the public becomes harsh.

“Informing the public is particularly difficult in this case,” our reader stressed. “While anyone has at least some vague understanding of what TTIP or TPP are about, this is far more difficult with regard to patent litigation and its planned centralisation via UPC. Those having that insight and expertise are also the same people seeking to profit from the new system, so you will rarely find any well-founded critical voice. Bristows may be unusually loud, but others are far deeper involved and pulling strings in the background more discretely.

“An unusually revealing impression about law firm arguments in favour of the new system can be found in the comment section here, maybe you have seen this already.”

This seems to have involved Wouter Pors of Bird & Bird The Hague (a UPC booster) and Ingve Stjerna. To quote Stjerna:

Truly a remarkable statement from Mr Pors.

If a partner of an international law firm declares that the law should adopt to the circumstances “where needed”, this speaks for itself. I always thought that, at least in states abiding by the Rule of Law, it was the law setting the standards and forming the framework for legislative activity on “what is needed”.

For Mr Pors, an end which he deems desirable seems to justify the means, even if this involves sacrificing some very fundamental democratic rights and principles, e. g. transparency. I am not sure whether such legislation can really be called “progress”, as Mr Pors claims.

We shall see what the European Court of Justice’s position is.

Like Mr. Pors, Mr. Battistelli also seems to believe that the “end which he deems desirable seems to justify the means,” as it applies both to the UPC and growing the number of patents (irrespective of quality and public interest). “Coming back to the idea of measuring the quality of the EPO’s output,” wrote another reader to us regarding the recent criticism of the EPO's questionable claims about 'results'. “There are two quality parameters which would be really informative:

• How many granted EP patents were later found by a national court to be invalid for reasons which were avoidable (ie which arose because the EPO search or examination was flawed)?
• How many EP applications were refused by the EPO which a national court would have ruled to be valid?

“However, the EPO will never take the trouble to measure such meaningful parameters, because they’re happy with numbers which mean little but which can be generated with practically zero effort.”

One must remember that when dealing with non-scientists in this system (not the examiners) statistics are scarcely/barely grasped and policy is not facts-based. A lot of the UPC promotion seems to boil down to self interest — not of scientists but of people who are milking science for their bottom line in the form of applications, litigation, etc. We cannot simply allow these people to dictate policy. █

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Battistelli is Trying to Save His EPO Job After Getting Called Out, But Doesn’t Give Back Busted Union Leaders Their Jobs; Strike Imminent

Posted in Europe, Patents at 3:45 am by Dr. Roy Schestowitz

“Lawfulness at the EPO” — a protest scheduled for the start of April

Summary: In spite of the Administrative Council’s request for justice, Battistelli and people in his circle continue to make merely symbolic moves, like signing a laughable deal with a union nobody cares about and now making a slight amendment in one among many disciplinary cases (past and present) against staff representatives at the European Patent Office (EPO)

THE illusion of "justice" at the EPO severely damaged the credibility of the whole Organisation, not just the Office. It is therefore unsurprising that the Council assertively asked Battistelli to repair this damage by restoring at least the perception of justice — something which probably isn’t in the École nationale d’administration (ÉNA) syllabus.

In our previous post (Request for Review) we showed a letter from the Chairperson of SUEPO in Munich (recently re-elected). Earlier that day we had mentioned a concession. It didn’t show a softer side of Battistelli but a Battistelli who is increasingly afraid because his sense of omnipotence is significantly eroded. As one person put it: “This decision is all the more remarkable that is the first example under Mr. Battistelli’s rule that the president has taken a step back.

“…it seems now obvious that the present management has the intention to survive all this at all cost!”
      –Anonymous“Not only was the decision revised to the advantage of the individual but also the letter does not contain any form of threat in conclusion – as most presidential communications did so far.”

This should not be mistaken for softness, however, as actions speak louder than words and virtually no action has been taken to undo the damage already caused. “Last week’s meeting with the Office management,” for instance, “had given no sign that this review had even been considered by the President.” That’s according to people close to the action (or inaction rather).

“In essence [Battistelli] maintains the dismissal but cancelled the 20% reduction of pension. In substance it rejects the existence of any procedural flaws and all the arguments presented by the defendant qualifying them as allegations and reiterates the appropriateness of the sanctions decided. [...] the offer to use external insight to review the case, requested both by the AC and staff, has been ignored. [...] it seems now obvious that the present management has the intention to survive all this at all cost!”

That would be terrible, as HR errors (or horrors) have throughly poisoned (or stacked) the management ranks, making the EPO a miserable place for people to work in, hence a discouragement to job applicants and a place incapable of attracting new talent, only losing existing talent. This would seriously harm Europe in the long run because as the USPTO serves to show with its appalling examination standards, spurious litigation and an atmosphere of fear is now prevalent nationwide there. Rather than becoming renowned for innovation and well known for science (like CERN or NASA, the latter being increasing de-funded) it is becoming notorious for patent trolls and aggression with lobbying by large multinational corporations such as IBM or Microsoft (busy blackmailing Asian companies just like Apple).

Perhaps the key point here is that there’s an HR (human) issue and unless the management gets replaced, not much will change. The crisis is guaranteed to only deepen. As one comment put it last night: “In order to save himself and his squalid team for the future glory of the Unitary Patent, Mr Battistelli now steps back on the excess punishment which in a sadistic move he imposed upon the staff representatives: Els gets back her 20% of pension (please remember that no long ago, against the unanimous opinion of the disciplinary commmittee, she was downgraded, so her pension is less any way); Jon will probably be reinstated “in an act of grace” because he has a 5 children. Do not make yourself any illusions: this is not justice but a move to save his a… The squalid representatives at the AC will believe they have regained control of the situation and tamed the President. He will continue as before exerting his mad authority and destroying the good working atmosphere and the reputation of what used to be a model International Organisation. The best employees will retire earlier or look for another job elsewhere. What remains is a bunch of servants at the management level and a mass of humiliated examiners fighting against each other for step advancements and bonuses. Attorneys and their associations have been silenced, bloggers neutralised, press has been bought. In a few week nobody will care any more about the EPO.”

“Not too surprisingly, in light of the (in)action above, the Office-wide (i.e. multinational) strike will happen and it seems like a matter of “when”, not “if”.”Battistelli “decided to reduce Hardon’s sentence by reinstating her pension rights,” one reader told us, “while confirming her dismissal.”

“The thing smacks of a diversionary tactic,” this reader told us (similar tactic to the FFPE-EPO MoU). “It’s like if he’s throwing a bone to the AC to keep it quiet. The Prince may be unfair, but he’s magnanimous.”

Not too surprisingly, in light of the (in)action above, the Office-wide (i.e. multinational) strike will happen and it seems like a matter of “when”, not “if”. Here is a letter from a solicitor:

Dear Sirs or Madams,

on behalf of the initiators of the strike “Lawfulness at the EPO” I send you the following message:

Dear members of the CSC

We, the initiators of the recent call for strike, entitled “Lawfulness at the EPO”, would like to thank you for agreeing to act as the contact point for discussions with the office, and for all the work you have done so far to support the strike call.
The Administrative Council and your meetings with the EPO’s management have now taken place and have failed to yield significant progress. We are sure, therefore, that the 754 signatories to the petition for the call for strike, and the 3701 colleagues who voted yes will be expecting an immediate reaction from us.

The call for strike stipulates that a one-day office-wide strike should take place in March. It is no longer possible to organise a strike in March, but we would like the strike to happen at the earliest opportunity. Taking the Easter holidays into consideration, we believe that the week of 4 to 8 April would be that opportunity. Our preference would be for a mid-week strike, on 6 April. If for any reason we need to exclude 6 April, then 7 April would also be acceptable.
Thank you in advance, as our representatives vis-à-vis both the office and the staff, for setting the wheels in motion to fix the strike date and to ensure that a maximum number of staff follow the call for what could be a crucial day in the history of the EPO.

We kindly ask you to publish this letter so that all staff can read it and know the position that the strike initiators are taking.

Your colleagues,

The initiators of the call for strike “Lawfulness at the EPO”

With best regards

[redacted]

For future record, not an endorsement in any shape or form, the letter from Battistelli is shown below. We were tempted to post a response to some of the most nonsensical parts of it (I have read many documents related to this, so I’m capable or responding to some points), but it would be very time-consuming a task given the length of the letter.

European Patent Office | 8029B MUNICH | GERMANY

By courier

Ms E. Hardon
An der Hauptfeuerwache 4
80331 München

Decision of the President – file number RR 2016-0020

Dear Ms Hardon,

On your request for review dated 28 January 2016 against the President’s decision dated 15 January 2016 following the disciplinary procedure D8/2015,

the President takes the following

Decision

Your request is partially granted. The decision to dismiss you, in accordance with the Disciplinary Committee’s opinion is maintained. However no reduction of pension rights will apply.

Rationale

Receivability

Your request for review is treated as receivable insofar it relates to the aforementioned decision of 15 January 2016.

As far as the earlier decision to downgrade you is concerned, it is noted that the matter is currently pending before the Administrative Tribunal of the International

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Labour Organisation and you cannot hereby attempt to reopen another procedural route against said decision.

Procedural Objections and Merits

It has been concluded that your request for review is unfounded in all respects.

Having reviewed your submissions, it is concluded that the disciplinary procedure is not tainted by any procedural or any other flaw and that your rights as defendant have at all times been observed by the Office and the Disciplinary Committee.

Your specific procedural objections filed with your request for review and also those previously articulated in a letter dated 02.12.2015 sent on your behalf by RAin Okyay, have been reviewed carefully.

As regards your allegations of bias, there are no grounds to shed doubts on the Disciplinary Committee’s impartiality. In particular, the participation of Mr C. McGinley as a member of the Disciplinary Committee following the drawing of his name at the lots was fully lawful. Contrary to your assertions at paragraphs 24-25 of your request for review, no conflict of interest could be established. Mr McGinley transparently disclosed the background of the episode you invoke to the Disciplinary Committee, which accepted these explanations after balancing them against your objection. The Committee unanimously concluded that there were no reasons to recuse Mr McGinley from his capacity in the Committee and you have not brought forward any new argument in your request for review which could justify concluding otherwise.

Concerning the procedural means at your disposal, you have provided no new arguments to undermine the conclusion that the investigation and disciplinary procedure followed due process. It is particularly noted that you have chosen not to avail yourself of the opportunity given to you of attending a further oral hearing scheduled for 8 January 2016. Moreover, whereas you criticise the

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review procedure at your disposal, you do not really bring forward any elaborated as well as substantiated argumentation in support of your position.

As to your allegation that you have been subject to institutional harassment, it is hereby strongly rebutted: the situation you find yourself in results from your own deliberate choice of an unacceptable behaviour as per the applicable standards of conduct, which you regretfully continue to try to justify. Your serious misconduct cannot however be left unpunished.

With regard to the first set of charges the following is noted:

The investigation against you under C-62b was a separate matter from the investigation C-62 concerning a member of the Board of Appeal. The material gathered in support of case C-62b was sufficient to substantiate the charges brought against you. The President of the Office has full disciplinary authority under Art. 10 EPC overall staff for which he is the appointing authority, including yourself. There is no conflict with any other independent procedure initiated by or pending before the Administrative Council. It was noted, when reviewing your submissions, that the Disciplinary Committee reached the same conclusion, unanimously, in para. 44-45 of its opinion.

As regards the content of the C-62b file, the following is noted:

Before the delivery of the preliminary findings of the Investigative Unit, you were duly invited to an interview with the aim to hear your comments on the matter. You decided however not to avail yourself of it. As a result the preliminary findings were drafted without any defence comments from your side.

On 16.11.2015 the President received these preliminary findings pursuant to Art. 4 (7) of Circular No. 342. These findings had already been sent to you earlier on the same day and you were provided with a deadline of seven days to submit your comments, in compliance with Art. 18 (1) of Circular No. 342. You were thereby given a second opportunity to be heard. The preliminary findings

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showed clear evidence of serious misconduct relating to an organised campaign of destructive attacks upon the reputation of the EPO, its governing bodies and individuals. There were thus sufficient grounds for the Investigative Unit to inform the President thereby giving him the opportunity to protect the Office’s interests. It is also noted that in this second opportunity to be heard you submitted your written comments in response to these allegations, but, after considering those comments, these allegations were still regarded as well-founded and justified disciplinary action. It is thus concluded that the rights of the defence were fully respected.

Throughout the investigation and the disciplinary procedure you had every opportunity to defend yourself as you wished and to rely upon or submit evidence to rebut the allegations made. You enjoyed the support of a number of lawyers and your rights both as respondent and defendant were fully respected. Contrary to your assertions, there are no grounds to believe that the accusations were “patched together”, inadequate or manipulated by the Office. It is apparent from the disciplinary file that there were several incidents of severe misconduct which were brought to light during the investigations. There was no reason to bring them before the Disciplinary Committee in separate or parallel procedures. It is worth noting also that some of the conduct subject of these charges occurred and continued during the actual proceedings and therefore fell naturally within the competence of the specific Disciplinary Committee.

In reviewing your submissions, it is again noted that the Disciplinary Committee reached the same conclusion, stating in para. 5 of its opinion that the use of Art. 4 (7) of Circular No. 342, “did not impact on the substance of D 8 /2015, and indeed the Defence had ample opportunity to present their case during the Hearing”.

As regards your claim from para. 16 of your request for review, you seek to invoke a separate procedure pending before a different body and against a different staff member, with its own factual background. The findings of the Enlarged Board of Appeal in that separate procedure are not relevant to your

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case. It is not considered appropriate for the Office to make any further comments on that matter save to point out that the decision of the Enlarged Board of Appeals you have attached to your request is related to confidential proceedings. The Office observes with concern that in a case where you have been found, by the unanimous opinion of its Disciplinary Committee, to have breached the fundamental rules of confidentiality of your employment, you continue to show a disregard for the conditions of confidentiality governing documents pertaining to an internal confidential process. It is noted that you persisted in referring to that document at the oral hearing of the Disciplinary Committee despite repeated warnings from the Chair of the Disciplinary Committee to desist. Your legal representative, similarly, and despite warnings regarding the confidential nature of this material, persistently cited from it (para. 7 of the Committee’s opinion). The Office is thus obliged to reserve its right to take any appropriate steps under the Service Regulations as regards this wrongful, unauthorised disclosure.

Moreover, in response to paragraph 16 of RAin Okyay’s letter of 02.12.2015, it is worth emphasising that the Investigative Unit did not access or survey your private e-mail account as specified by Ms Okyay. It merely relied upon information already available to it from 2014 HTML snapshots of an anonymous account of the subject staff member in case C-62 – in this respect, the fact that the date of 2015 appears is merely linked to the access/printing date for the HTML file for this report, and does not signify the date when it was obtained.

During the entire process, as explained also before the Disciplinary Committee and as fully endorsed by its members, all investigative steps were in any event covered in their entirety by the permission of the Data Protection Officer of the Office and thus all evidence collected was fully admissible in the investigation and disciplinary procedures.

II.

As regards the second set of charges concerning your threatening behaviour towards other elected staff representatives, it is worth recalling that while staff

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and union representatives benefit from a degree of latitude when exercising their freedom of expression in that role, they are bound by the standard of conduct applicable to all Office employees as international officials. A breach of such standards, whatever the forum in which it occurs, is a matter of legitimate interest to the Office as employer. Misconduct of staff and union representatives indeed cannot be considered solely a matter for handling by the staff and union representation. Hence your contention that the investigation into your conduct and subsequent disciplinary action breach the principles of confidentiality and freedom of association is misplaced (see ILOAT Judgment No 54, consideration 6).

The fact that the statement giving rise to the disciplinary procedure was made during a meeting of the Local Staff Committee in Munich is therefore not, without more, an answer to the charge made. The statement was made in the premises of the Office and amongst employees of the Office who all remain protected and bound by the ServRegs and Circular No. 341 at all times, regardless of their function or area of activity. The Office moreover has a legal obligation to protect those present from intimidation including by your words or actions and any verbal or physical threats.

It is noted that the Disciplinary Committee took great care, as it made clear in paragraph 4 of its Opinion, to consider only matters which went well beyond any reasonable definition of the duties of a staff or union representative. Your suggestion that your behaviour was normal as part of a lively discussion cannot be accepted.

Having reviewed your submissions in paragraphs 17 to 25, it remains the Office’s position that the statement which you made, twice, to your colleagues and the accompanying hand gesture, threatened the dignity of your colleagues, Contrary to what you suggest, your statements and the accompanying hand gesture have been sufficiently evidenced throughout the investigation and disciplinary proceedings. It is further considered that the statement was made in full knowledge that it would stand to impair their ability to fulfil their functions as

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elected representatives on behalf of other employees, and in furtherance of employer-employee relations. It was the Office’s clear duty to investigate such an incident, and respond to it appropriately.

The Disciplinary Committee’s opinion also supports the Office’s decision to investigate this incident. It advised that you had behaved in ways which were “incompatible with [your] duties as a staff member and as an elected staff representative” (para. 66 – 69 of its opinion). Under these circumstances, your grave misconduct is not excused or materially mitigated by your holding a representative post (see also the ILOAT case law J. 87 and 969).

III.

As regards the third set of your charges, you repeat your opinion in your request for review that no confidentiality was warranted in the present case and that your actions were justified to enhance transparency in a public-service organisation. It is considered that your submissions fail to understand the gravamen of this charge. You were at all times obliged, pursuant to Art 5, 14(1) and 20 ServRegs and Art 4 of Circulars No. 341 and 342 to respect the confidentiality obligations which are fundamental to any staff in investigation and disciplinary procedures. The Disciplinary Committee considered this point fully and has concluded, unanimously, that there was clear and undisputed misconduct. You not only admitted such misconduct but endorsed it openly, and declared your intention to persist with this behaviour in the future (para. 74, 79-81).

The Office maintains that these fundamental breaches of your duty of trust and confidence as an employee have been conclusively proven.

It cannot be argued, as you do, that staff has a “legitimate interest” to be fully informed not only about the initiation of investigation or disciplinary procedures but also about the details of such procedures when they concern staff or union representatives. It is on the contrary in the interest of both Office management

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and staff representation to ensure that investigation and disciplinary proceedings are handled with all due confidentiality.

Lastly, as regards the Office’s decision to terminate your service with a 20% reduction of your pension rights pursuant to Art. 93 (2) (f) in fine, the Office observes that the Disciplinary Committee’s recommendation is, of course, not, binding upon the President. Reference is made by way of example to the fact that when rejecting the conclusions and recommendations of an internal Disciplinary Committee, a President of an international organisation is obliged to provide adequate reasons for so doing.

The Office has provided sufficient reasons in its decision (cf. inter alia Parts IV and V) to explain why, contrary to the Disciplinary Committee’s recommendation, it considers the reduction is proportionate to the number and seriousness of the breaches established. The President underlined, inter alia, the repeated nature of the misconduct, its extent, the lack of any contrition or regret from your side, the public damage to the reputation of the Office and, further, the fact that you had already been sanctioned with a downgrading for a similar disciplinary misconduct in 2014. Those circumstances clearly show conduct evidencing a breakdown in the relationship of mutual trust and confidence necessary for the maintenance of the employment relationship, indeed they go well beyond such conduct in their seriousness and potentially damaging effect and hence the Office expressly rebuts the allegations that the sanction was disproportionate and arbitrary.

This having been said, after a comprehensive reassessment of your case and taking into account the length of your contribution to the Office’s service and commitment towards staff representation albeit unfortunately in the recent years through improper means which went far beyond any acceptable limits, I have decided on an ex gratia basis to partially grant your request for review and cancel the 20% reduction of your pension rights. However your unacceptable behaviour fully warrants dismissal and the decision of 15 January 2015 is thus maintained to that extent.

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Means of redress

This decision constitutes a final decision within the meaning of Article 113 of the Service Regulations.

Yours sincerely,

Benoît Battistelli

There is too much nonsense to respond to in-line without it taking a long time (and pulling a lot of references to support the response), but those who have followed this site long enough will instantaneously see the flaws. It might be enough to fool some who are inside the Council (too busy to follow it all along and read all the exchanges) and this is probably what Battistelli is counting on. For instance, Battistelli’s letter (or someone’s letter with Battistelli’s name added to) says Hardon has “chosen not to avail [her]self of the opportunity given to [her] of attending a further oral hearing scheduled for 8 January 2016.” Members of the Council (Administrative Council) must learn the whole farcical nature of the so-called ‘disciplinary’ procedure (not compatible with European law, human rights etc.) in order to understand why Hardon, with proper legal advice/consultation, doesn’t walk into the lion’s den. There is no justice there, it’s only a amphitheater like in old Rome. █

“I am not interested in power for power`s sake, but I`m interested in power that is moral, that is right and that is good.”

–Martin Luther King Jr.

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