11.04.15

The EPO’s Investigative Unit Exposed: Part II

Posted in Europe, Patents at 5:28 pm by Dr. Roy Schestowitz

Benoît Battistelli created a shady, unaccountable army

Summary: How the President of the European Patent Office got his own private mercenaries, who can outrageously enough ignore European laws and human rights, in order to guard his unprecedented tyranny

“In March 2013,” told us a source, “EPO staff representatives submitted their concerns about Circular No. 342 to the Administrative Council in the document CA/33/13.”

Circular No. 342 was the subject of Part I (textual copy was cited/attached) and here is the response to it [PDF], along with context in the PDF (scroll down to the bottom). Our emphasis is added in yellow to better suit quick readers:

CA/33/13
Orig.: en

Munich, 12.03.2013

SUBJECT: Investigations Guidelines of the EPO
SUBMITTED BY: President of the European Patent Office
ADDRESSEES: Administrative Council (for information)

---

SUMMARY

This document is submitted by the staff representatives via the President of the European Patent Office, in accordance with Article 9(2.2)(b) of the Administrative Council’s rules of
procedure (see CA/D 8/06).

Recommendation for publication:
No, in view of possible ongoing legal disputes.

---

On 01.01.2013 the Office adopted Guidelines for the investigation of fraud, misconduct and harassment. These Investigative Guidelines give excessive powers to the President of the EPO and to the Investigation Unit. The Investigation Guidelines fail to provide staff with basic protection against self-incrimination, incrimination of family members and violation of private property, including the home. The level of evidence required, “on the balance of probabilities” (i.e. more likely than not) is insufficient in view of the potentially grave consequences, including dismissal.

It has to be clarified if the Investigation Guidelines are in contradiction with international law, namely the European Convention on Human Rights (ECHR) and the Universal Declaration of Human Rights.

---

TABLE OF CONTENTS

I. INTRODUCTION
II. BACK-GROUND
III. MAIN ISSUES
A. NO LIMITATION TO THE PRESIDENT’S POWERS TO ORDER INVESTIGATION
B. NO PROTECTION AGAINST SELF-INCRIMINATION OR INCRIMINATION OF FAMILY MEMBERS.
C. NO PROTECTION OF PRIVATE PROPERTY
D. INSUFFICIENT LEVEL OF PROOF
E. LACK OF TRANSPARENCY
F. NO LEGAL ASSISTANCE DURING HEARINGS
IV. CONCLUSIONS AND REQUEST
ANNEX 1 CIRCULAR NO.342 (“GUIDELINES FOR INVESTIGATIONS OF THE EPO”)

---

I. INTRODUCTION

The Central Staff Committee welcomes the initiative of the President of the EPO to establish a Code of Conduct, a Staff Dignity Policy and Investigation Guidelines. Present Circulars 341 (“Formal procedure on staff dignity”) and 342 (“Guidelines for Investigations of the EPO”) fail, however, to provide the right protection needed and furthermore may infringe fundamental human rights. The present document concentrates on Circular 342 (investigation guidelines), but many of the shortcomings also apply to Circular 341.

II. BACK-GROUND

In all the EPO’s Member States a clear separation of power between the legislative and the operative exist. Amongst the typical safe-guards that apply is, for example, the need for a search warrant for the police to be able to enter private property.

In the EPO no such separation of powers exists. The President is in the EPO head of Internal Audit who act as the “internal police”. He is also the ultimate “judge”, deciding whether disciplinary measures will be taken or not. In so deciding he is not obliged to follow the recommendations of the disciplinary boards. The strong powers of the President and the Investigative Unit that reports to him are not in any way balanced by safeguards for staff subject to or involved in investigative processes. The most serious flaws are listed below. More can be found in the opinion of the General Advisory Committee (Annex 1).

III. MAIN ISSUES

A. NO LIMITATION TO THE PRESIDENT’S POWERS TO ORDER INVESTIGATION

Circular 342 foresees two triggers for the investigative process:

a) an allegation of misconduct (Art. 9(2)), or
b) a request by the President (Art. 9(3)).

Such a request by the President does not require a suspicion of misconduct or other justification. According to Arts. 10 and 11, allegations of misconduct are subject to initial review and preliminary evaluation before an investigative process is started. This is not the case for requests by the President. In fact, there is nothing in the Guidelines that would hinder the President of investigating whom he wants and how he wants, with or without informing the subject of the investigation.

B. NO PROTECTION AGAINST SELF-INCRIMINATION OR INCRIMINATION OF FAMILY MEMBERS.

Circular 342 does not foresee a right to remain silent. On the contrary: according to Art. 8(1) “All persons covered by … this Circular shall be obliged to co-operate fully with the investigative unit”. According to Art. 8(3) of the Guidelines as adopted, “failure to co-operate without legal justification” may constitute misconduct and hence expose the person concerned to disciplinary proceedings. Neither the Service Regulations nor the Guidelines provide any legal basis for non-co-operation: the duty to co-operate thus seems absolute.

C. NO PROTECTION OF PRIVATE PROPERTY

The Guidelines explicitly foresee search and seizure of all data and materials owned by the Office or present on its premises. There is no protection against access to private material (e.g. personal mobile phones) or confidential information (e.g. medical file, appeals procedures) other than, in some specific cases, prior
authorisation of the Data Protection Office. Such prior authorisation can be dispensed with if this would risk to “jeopardise the investigation”. The Circular expressly foresees access to evidence located outside the Office premises (Art. 16(9)). It is stipulated that for this the investigate unit “must abide by all the applicable provisions of local law or (sic!) obtain prior written permission from the individual concerned”. In view of the duty to co-operate fully (see above), it would seem that such written permission cannot be refused. Hence it would seem that investigators appointed by the EPO can search and size private property without regard of national law.

D. INSUFFICIENT LEVEL OF PROOF

The results of the fact-finding of the investigative unit form the basis for further decisions, ultimately taken by the President. If the investigative unit finds that fraud, misconduct or harassment has occurred, this could lead to disciplinary proceedings and ultimately dismissal. According to Art. 18(4)(ii), the investigative unit will base its conclusions “on a preponderance of the evidence”, i.e. a merely greater than 50% likelihood that fraud, misconduct or harassment has occurred. This is an unacceptably low level of proof given the potentially serious consequences.

E. LACK OF TRANSPARENCY

According to Article 18(7) “the subject of an investigation shall receive a copy of the report if and when, on the basis of the report, disciplinary proceedings are initiated”, meaning that an investigative report on a person may exist without his or her knowledge of the contents. This would not seem acceptable in any European state in 2013.

F. NO LEGAL ASSISTANCE DURING HEARINGS

The subject of an investigation does not have the right of legal assistance of his own choosing (e.g. from outside the office) during hearings. This is in contradiction to article 6 paragraph 3(c) of the ECHM.

IV. CONCLUSIONS AND REQUEST

The CSC is of the opinion that the Guidelines for Investigations confer excessive powers to the President of the EPO and the Investigative Unit without providing the corresponding guarantees and safeguards for staff as normally provided by national law in the EPO Member States.

The CSC doubts whether the Guidelines as they currently stand are in accordance with Art. 12 of the Universal Declaration of Human Rights:

“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

The CSC also doubts whether the Guidelines as they currently stand are in accordance with the European Convention on Human Rights (ECHR):

Article 8 Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 6 Right to a fair trial

[...]

3. Everyone charged with a criminal offence has the following minimum rights:

[...]

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

The CSC therefore requests an independent legal evaluation of Circulars 341 and 342 of to answer the following questions:

(a) are Circulars 341 and 342 in compliance with international human rights conventions, and

(b) do Circulars 341 and 342 afford staff of the EPO a level of protection against arbitrary interference with his or her privacy, family, home or correspondence that is equivalent to that provided in the EPO Member States?

The Central Staff Committee

As anyone who has read through the above text can certainly see, this is quite a coup d’état by Benoît Battistelli. It may seem unthinkable that he can get away with it, but he did. Somehow he did.

“The Council seems to have ignored these submissions,” the source told us, “because there is no available record of any response having been made.”

This is also the response received after Transparency International was called to intervene, whereupon it wrote to Jesper Kongstad (definitely not a popular person inside the EPO) and never received a response thereafter (that was before the doors revolved, perhaps even twice).

“In part III we are planning to look deeper into the EPO and step into the chambers of the notorious I.U.”“The bottom line here,” explained our source, “is that due to the apparent inaction of the Administrative Council, the President has succeeded in single-handedly imposing on the EPO a system which places unlimited power into his own hands and there is no effective system of checks and balances to prevent abuse.

“This situation is contrary to the spirit of the European Patent Convention which envisaged a European Patent Organisation based on the classical tripartite “separation of powers” model à la Montesquieu.

“From the minutes of the Diplomatic Conferences which led to the signing of the Convention in its final form in 1973, it its clear that the drafters envisaged a tripartite system consisting of a legislative body (the Administrative Council), an executive body (the Office administration headed by the President) and a judicial or quasi-judicial body (the Boards of Appeal).

“The tripartite model of governance doesn’t appear to be to the liking of the current President whose preference seems to be for a more centralised autocratic system.

“The current dysfunctional developments in EPO governance were already commented upon by a number of external observers back in December 2014. For example, the German patent attorney Thorsten Bausch wrote an article entitled “Que le pouvoir arrête le pouvoir – >From Montesquieu to Battistelli” dealing with the perceived breach of the principle of the separation of powers by the President.

“Further critical observations in a similar vein have been made recently by Siegfried Broß, a retired judge of the German Federal Constitutional Court.

“The most puzzling aspect of the current situation is the role of the Administrative Council. It is unclear why they have permitted such an unfettered concentration of power in the hands of the EPO President contrary to the fundamental principles enshrined in the EPC. Either they understand what is going on and are actively colluding in it or else the President has been very successful in pulling the wool over their eyes. Whatever the truth of the matter may be, it is very difficult to avoid the impression that the Administrative Council is failing to fulfill its institutional role as envisaged by the drafters of the EPC.”

In part III we are planning to look deeper into the EPO and step into the chambers of the notorious I.U. Therein we may find reasonably good explanations for at least some of the many suicides (casualties of war, namely Battistelli’s war on dissent or perceived opponents). █

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The Latest Propaganda From Benoît Battistelli is Promotion of the Unitary Patent (UPC) at Political Levels

Posted in Europe, Patents at 4:26 pm by Dr. Roy Schestowitz

Nobody ever voted for Battistelli, who now acts like a politician behind closed doors or a Big Business lobbyist behind the scenes

Summary: An internal puff piece, posted some time ago in the EPO’s intranet, serves to show just how much the EPO’s management intervenes in matters beyond the scope of its operation

THE EPO scandals show no sign of abatement (stay tuned for part two of the I.U. series) and Battistelli has been trying to make peace with prominent politicians, perhaps already realising that the end of his career may be near.

The following item from the EPO intranet recently came our way and we decided to write about this today. As one of our regular readers put it: “It has a distinctive “Bucharest 1980″ or “Pyongyang 2015″ tone, i.e., “Brussels offers enthusiastic welcome to our triumphant and infallible Dear Leader”.

“Are the EU, BB [Big Business] and BB [Benoît Battistelli] really that close?”

“Did the persons named really unequivocally express such a blanket endorsement the policies of the EPO President, e.g. in the last sentence? If not, what would they make out of this communiqué?”

Well, let’s examine it before breaking it down. In its raw form:

Home -> Organisation -> News -> 2015

President Battistelli visits Brussels

EU meetings reveal high support for unitary patent, transparency and reforms

President Battistelli was in Brussels on Tuesday, 20 October for a series of meetings with high-level representatives of the European institutions and business associations. In the first of his two Berlaymont visits that day, the President first met Cecilia Malmström, European Commissioner for Trade, to discuss ongoing bilateral EU trade negotiations with the United States and Japan.

The meeting with Commissioner Malmström was an opportunity to convey the significant progress being made in ongoing multilateral discussions on substantive patent law harmonisation in the Group B+, in close coordination with European industry. Among the other topics on the agenda were the EPO’s international cooperation activities, in which the EPO delegation underlined the importance of aligning with the EU at the political and technical level. Ms Malmström also expressed her appreciation for the excellent cooperation between the EPO and DG TRADE, as well as welcoming the EPO’s endeavours to increase information and transparency in the field of patents and medicines.

The day’s programme also included a productive exchange with Research, Science and Innovation Commissioner, Carlos Moedas, who was introduced to the work of the EPO and its role in the future unitary patent system. The Commissioner expressed his strong support for the unitary patent and declared his readiness to reach out to Member States, in coordination with Commissioner Bienkowska, in order to stress the importance of promptly ratifying the Unified Patent Court Agreement. It was also proposed to further develop cooperation between the EPO and the European Commission on academic research into the economic impact on patents, which the Commissioner endorsed.

In the European Parliament, the President met with Jerzy Buzek MEP, Chair of the Industry, Research and Energy Committee and former President of the European Parliament. It was a valuable meeting in which the latest developments in the unitary patent were discussed and as well as the value of patents to European innovation.

In addition, the EPO’s delegation visited the European Commission’s Department for Internal Market, Industry, Entrepreneurship and SMEs (DG GROW), where they met for the first time with Lowri Evans, who has recently taken over as Director-General. Among the common areas of interest discussed were the next steps in the implementation of the unitary patent as well as the currently mounting political pressure on the biotechnology directive following the Tomatoes II / Broccoli II decisions of the Enlarged Board of Appeal. It was agreed to continue the constructive dialogue between the EPO and DG GROW at the technical level.

Finally, in a meeting with the Director-General of BUSINESSEUROPE, Markus Beyrer, President Benoît Battistelli was able to inform the business association of the latest developments in substantive patent law harmonisation and the unitary patent. It was emphasised by Mr Beyrer that the decision on True Top 4 renewal fees has been met with support from BUSINESSEUROPE. He also expressed full support for the EPO’s ongoing reforms.

23.10.2015 | Author Thomas Robertson – President’s Office | Target
group: DG4, DG5, President-DG0, DG1, DG2, DG3

We shall tackle this one of piece at a time: Mr. Battistelli decided it was time to go lobbying in Brussels, perhaps as part of the same old push for the unitary patent (UPC) — a bundle of joy for billionaires and multinational corporations, all at the expense of everybody else.

Battistelli met “high-level representatives”, not just politicians but also business associations (like those who are fronting for the corporations with an EPO 'fast lane'). Battistelli met a well-known apologist for TPP and its secrecy, a “European Commissioner for Trade,” to discuss all those so-called ‘trade’ issues. Which ones? The ones that Europeans are rightly outraged about. We’re pretty certain these two have much in common; they’re occupiers, not representatives. We know who they really serve.

Battistelli spoke to Malmström about UPC, which we often compare to TPP (no surprise there). Malmström was satisfied with Battistelli’s “transparency”; given her own poor record on this issue, that’s akin to Vladimir Putin congratulating the folks at Pyongyang.

Later Battistelli got to chat to/mingle with Moedas, to whom he also promoted the UPC. They are clearly stuck in an echo chamber there. He then spoke to a outspoken proponent of the UPC, Bienkowska, who had also protected Battistelli in the face of complaints (nothing was ever done about it).

Buzek, whom we mentioned here a couple of times before, was the next in line to meet Battistelli. There too Battistelli was lobbying for UPC.

Battistelli continued lobbying for the UPC in yet more places while pretty much dismissing complaints about patents he lets be granted on life (patent maximalism).

All in all, as we have warned before, the EPO is not at all impartial and it oversteps its boundaries by intervening/meddling with matters pertaining to patent scope and breadth of applicability. This is the behaviour of a business striving to maximise profits, not a public service. The EPO has already lost its way and the pseudo reporting (shameless self-promotion above) serves to reinforce this sentiment.

The EPO is supposed to be dealing with granting of patents and rejecting patent applications based on their merit, not advocate for more patents in more domains and in more countries. The EPO is now expanding like a cancer, whose natural philosophy is that expansion — no matter how malignant — will somehow be collectively beneficial. █

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Red Hat’s Deal With Microsoft Resurrects Fears of Software Patents Against GNU/Linux and Introduces ‘Triple-Dipping’ of Fees

Posted in GNU/Linux, Microsoft, Red Hat at 3:39 pm by Dr. Roy Schestowitz

Microsoft’s vision of patent/usage tax on GNU/Linux is becoming a reality

Summary: Microsoft can charge GNU/Linux for alleged patent violations, for server resources (per CPU or per day), and additionally make money from spying on users’ data and passing it around

RED HAT’S terrible deal with Microsoft ruins what started as a quiet and relatively happy day. It also poses a threat to every GNU/Linux vendor other than Red Hat (and maybe SUSE too, as it signed a Microsoft patent deal a very long time ago). Microsoft Peter does not mention the part about the patents, nor do the puff pieces and press releases. There is also nothing about the severe privacy implications.

This is how the Wall Street Journal covered the deal, merely stating that “Red Hat’s version of the Linux operating system to be available to users of Microsoft Azure cloud service” (for Microsoft to spy on and to tax using patents). Inside Microsoft’s Azure, RHEL has something even worse than back doors. It has built-in file-by-file surveillance, so any claims of security are simply not applicable. Remember that Microsoft already admits (quite openly) that in its so-called ‘cloud’ every single file is being scanned. Pedophilia is a common pretext for doing this. This isn’t hosting but spying. Where does that leave software freedom?

Microsoft is quickly finding that there’s no money in proprietary software like Windows (see Vista 10 pricing and force-feeding), so it sells people’s private data and now adds infuriating charges to that (breaking a promise). As pointed out here before — and even earlier today — it all comes down to patents (also recall the two articles from the day beforehand, i.e. yesterday) and paid-for surveillance. It’s an attack on general-purpose computing, on privacy, and many other things. It’s an abomination.

Even a Microsoft booster, Tim Anderson, admits that there’s trouble ahead and says: “Most people have at least 30GB of free OneDrive storage: 15GB as standard, and an additional 15GB bonus easily obtained by setting the camera roll on a mobile device to use OneDrive for image backup. An additional 100GB was available for $1.99 per month.”

“In this age when software patents are a dying breed in the US we now have the largest GNU/Linux vendor basically giving Microsoft’s patent war on GNU/Linux legitimacy.”Microsoft now wishes to tax GNU/Linux twofold. It will charge patent fees and at the same time charge GNU/Linux for server space and capacity. On top of it, Microsoft will subject these GNU/Linux instances to the usual surveillance, which Microsoft can of course monetise, as it already does (we covered this on several occasions before).

Since our site is primarily focused on the impact of patents on Free software, what bothers us is that Red Hat, despite the Alice case, is agreeing to a software patents deal with Microsoft. This is inexcusable and it doesn’t take an absolutist on this matter to see what’s wrong with that. Steve Ballmer once said that “people that use Red Hat, at least with respect to our intellectual property, in a sense have an obligation to compensate us.” Ballmer’s wishes may have just come true. The Alice case has already served to prove that software patents hold little weight in the US, yet Red Hat goes right into this trap. Incidentally, Web sites of patent lawyers continue to only ever write about software patents and Alice in the rare occasion of them surviving (the exception, not the form). Here is the latest example which concludes with: “Unfortunately, the court did not expand on its reasoning for finding the invention to be patent eligible. The two sentences above show the court presumably agreed with the arguments presented by Versata, but that hardly means any invention that solves a problem is eligible for patent protection. Versata stressed the technical components of the invention – that it was directed to a “technical objective” within “the more limited display screen of a mobile phone, pager, PDA, or similar mobile device.” It is therefore possible that the court was persuaded that the invention was drawn to a more technical, and less abstract, invention.”

In this age when software patents are a dying breed in the US we now have the largest GNU/Linux vendor basically giving Microsoft’s patent war on GNU/Linux legitimacy. Only time will tell the magnitude of this mistake and its impact on other players such as Debian. █

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Links 4/11/2015: Linux-Based Parcel Delivery, OpenSUSE Leap 42.1

Posted in News Roundup at 2:56 pm by Dr. Roy Schestowitz

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Red Hat Sells Out With a Microsoft Patent Deal

Posted in Microsoft, Patents, Red Hat at 12:53 pm by Dr. Roy Schestowitz

Shame on Red Hat, the so-called ‘open’ organisation, for acting very foolish

Summary: OpenShift deviates to patents-laden APIs of a patent aggressor, Microsoft, and Red Hat signs a patent deal with Microsoft

THERE is some disturbing news coming out of Red Hat this afternoon, only a day after announcing the release of Fedora 23.

Half a decade ago we complained about Red Hat’s dubious affair with software patents. The company isn’t serious about fighting them anymore. We have already covered it in articles such as:

• Novell, Red Hat, and Software Patents: Strike II
• Red Hat Fights Fire with Fire
• Patents Roundup: Red Hat, Former USPTO Commissioner on Patent Demise, and WIPO Notes
• Patents Roundup: Red Hat Again; EPO and USPTO Debated
• The Other Side of Red Hat: Pieter Hintjens on AMQP and Patents
• How Red Hat Dodged a Novell-Like Microsoft Deal Despite Lobbying for Software Patents
• Red Hat, Microsoft, EU Lobbyists, and Software Patents
• A Glimpse Back at Red Hat’s and Novell’s Stance on Software Patents in 2005
• Red Hat and Software Patents (Video)
• Patents Roundup: Identifying Real Patent Foes and Conflicts of Interests
• Red Hat Should Eliminate All of Its Patents, or At Least Attach Self-Destructive Clauses to Them

“Half a decade ago we complained about Red Hat’s dubious affair with software patents.”Things are getting worse and today, based on Sean Kerner, there is a patent deal signed between Microsoft and Red Hat (the companies try hard to hide this, even the self-acclaimed ‘open’ organisation prefers not to talk about it). Why was this done? Maybe because at Red Hat money now matters more than freedom and ethics? Here is how they try to spin it: “Microsoft Corp. (Nasdaq “MSFT”) and Red Hat Inc. (NYSE: RHT) on Wednesday announced a partnership that will help customers embrace hybrid cloud computing by providing greater choice and flexibility deploying Red Hat solutions on Microsoft Azure. As a key component of today’s announcement, Microsoft is offering Red Hat Enterprise Linux as the preferred choice for enterprise Linux workloads on Microsoft Azure. In addition, Microsoft and Red Hat are also working together to address common enterprise, ISV and developer needs for building, deploying and managing applications on Red Hat software across private and public clouds.” OpenShift is even helping .NET, which is a patent trap. But don’t worry, one might say, there is now a patent deal. Now you can use RHEL while you’re being spied on by the PRISM industry leader (first company in PRISM) and enjoy patent “peace of mind”, to use the ludicrous language previously used by Novell.

Sean Kerner covered this pretty fast and he is already quite vocal about it. In Twitter he said that the “patent part is … strange & very surprising IMHO [...] Here’s my original story from 2007 http://www.internetnews.com/bus-news/article.php/3677506/Microsoft+Open+Source+Infringes+on+235+Patents.htm … <- back then @RedHatNews told me they’d never do a patent deal with Microsoft [...] In 2007 @Microsoft alleged that Open Source software infringed on 235 patent / 8 yrs later @RedHatNews now has a patent agreement with them [...] ‘Red Hat a& Microsoft have agreed to a limited patent arrangement in connection..’ <- never thought i’d see the day.”

“Maybe the management has been softened by the hiring of managers from Microsoft (as we covered at the time of it happening).”Responding to OpenShift and another person he wrote, “you do know that @Microsoft *still* claims that open-source software infringes on its patents right?”

For two NSA allies (NSA is a huge client of both) to join forces might make financial sense, but where does that leave Free/libre software? Red Hat is being quite a traitor here and @RedHatNews (Red Hat’s Twitter account) sounds rather excited about it, with tweets like: “Just in! Microsoft and #RedHat to deliver new standard for enterprise #cloud experiences http://red.ht/1HqRZrv”

Surely we are going to revisit this in the coming days, but in the mean time, shame on Red Hat. Maybe the management has been softened by the hiring of managers from Microsoft (as we covered at the time of it happening). Only weeks ago Red Hat liaised with somewhat of a Microsoft satellite and not too long ago it paid Microsoft patent trolls (secretly, again). █

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A State Within a State: Süddeutsche Zeitung Article About the EPO’s Bizarre Existence Above the Law

Posted in Europe, Patents at 8:52 am by Dr. Roy Schestowitz

Summary: A belated translation into English of a long article about lawlessness at the EPO, or the law of monarchy, where Battistelli is the monarch

LAWLESSNESS at the EPO will be this month’s theme in Techrights, so we wish to go back and retrieve information of relevance. Süddeutsche Zeitung published an article titled “Uprising in the Realm of the Sun King” (Battistelli) in November of last year. Another article, titled “A state within a state” (or “Staat im Staate“), was published a month later.

Here is the translation into English:

Süddeutsche Zeitung, 20/21 December 2014, Wirtschaft

A state within a state

The President of the European Patent Office wants to remove some of his employees’ privileges. They are vehemently opposing him. It’s not, they claim, about money or status – it’s about their fundamental rights.

BY KATJA RIEDEL AND CHRISTOPHER SCHRADER

Munich – Benoît Battistelli’s office looks out over Munich. Beneath him flows the Isar, the German Museum huddles on the bank of the river, and, on a clear day, the Alps can be seen on the horizon. When night falls, Battistelli can see the glistening lights of Munich’s Christmas markets. But he is probably not inclined towards contemplation these days.

“He [Battistelli] is dubbed “The Sun King” by many.”In the corridors and on the pavement outside the European Patent office, the mood is anything but peaceful: it is indignant, outraged, hostile. And it is directed chiefly against him, the President, against his excessive power, against the reforms that are turning working life at the office on its head and abolishing certain privileges. It is also directed increasingly against Battistelli’s management style, which many employees find unpalatable. He is dubbed “The Sun King” by many.

Which explains why staff at the European Patent Office are now striking, at this office with its luxurious working conditions, monthly salaries averaging 7600 euros, complete with tax immunity, and long holidays and extremely generous social benefits. For 40 years, the European Patent Organisation has offered high earnings and benefits as the carrot to attract highly-qualified scientists with the skills to understand and assess technical documents in several languages.

“On three days consecutive days recently, more than a thousand patent examiners have taken to the streets in the demonstrations organised by Suepo, the trade union at the Patent Office.”The strike by biologists and chemists, pharmacologists and engineers has now been dragging on for 15 days. On three days consecutive days recently, more than a thousand patent examiners have taken to the streets in the demonstrations organised by Suepo, the trade union at the Patent Office. That number equates to roughly a quarter of the staff in Munich, and there have also been protests in other locations in The Hague, Vienna and Berlin. The patent examiners do not all hail from Germany; they have also come to Munich from Spain, Italy, Switzerland and Sweden – 38 member states all told. Most of them moved here with their family, with children many of whom – at the Patent Office’s expense – attend the international schools or kindergartens. They were brandishing signs proclaiming: “Yes to reforms. But not with this President”.

“And for the first time, lawyers from big patent law firms are siding with the employees, in the wake of Battistelli’s decision to oust a patent judge from his role and ban him from the premises.”The conflict has been dragging on for months, escalating all the while. And for the first time, lawyers from big patent law firms are siding with the employees, in the wake of Battistelli’s decision to oust a patent judge from his role and ban him from the premises. In Munich, there are many of these law firms in the vicinity of the European and German Patent Office which make their money by securing patents for companies – and fighting their case in court if necessary. Lawyer Tilman Müller-Stoy of the firm of Bardehle Pagenberg, writes in an open letter to the Federal Ministry of Justice that a “climate of fear and intimidation” prevails among staff at the European Patent Office.

Battistelli refutes this: he accuses the lawyers of making “rash assessments without any knowledge of the relevant facts”. The employees who are taking to the streets are, he says, a small minority and the trade union Suepo is primarily concerned with justifying its own existence.

Conflicts between the employees and the management are something of a historical tradition at the European Patent Office, say some who have been there from the beginning. They also say that some of Battistelli’s predecessors kept piling on privileges to appease conflicts and keep employees happy.

The latest dispute, however, is a different beast: Two sides are locked in an impasse, their arguments not just shades but worlds apart, with each accusing the other of things that the opposite party categorically denies. Battistelli is on a mission to make the Office operate more efficiently and remove certain privileges. Suepo and the striking employees, however, are adamant that this isn’t about money or status, but fundamental rights. Such as the right to join a trade union, strike and obtain legal assistance when accusations are made against them.

“Suepo and the striking employees, however, are adamant that this isn’t about money or status, but fundamental rights.”The problem with all of this is: the European Patent Organisation (EPO), supported by its 38 member states, is an international organisation which issues its own rules and is not bound by the laws of its member states – it is a state within a state. Its 7000 employees work at four locations. And their significance is growing: in 2013 the Office granted almost 67,000 patents, an increase of more than 15,000 compared with 2009.

Battistelli has been in charge since 2010. His management style is described as dictatorial by his critics but as resolute by his supporters.

Battistelli has radically overhauled the promotion system, which is no longer tied to length of service, but to performance. He has introduced new guidelines for the examination of patents which the striking employees oppose on the grounds that they are too perfunctory and make it increasingly difficult to spot errors. This is a fear shared by many patent attorneys.

Particularly contentious is the internal investigation procedure introduced by Battistelli to enable the office to internally ascertain whether an employee has potentially violated guidelines, whether with respect to formalities or by committing a more serious offence such as corruption, bullying or defamation. The “Investigation Guidelines” were written by Florian Andres, a friendly, bearded man from Switzerland. He will be retiring at the end of the year. Photos of his grandchildren and the Eiger, Mönch and Jungfrau mountain range adorn the walls in his office. Up until three years ago, says Andres, there was no formal procedure for suspected violations of internal rules by an employee.

“At the start of December, employees say, the Security department marched into the office of a patent judge who is a member of a Board of Appeal, seized a computer and led him away.”In order for an investigation to be launched, there must be a suspected violation and at least one piece of evidence, says Andres. If this is the case, the evidence is secured and accused employees’ computers are accessed. Only after that are the data viewed. The accused is permitted to be present when that happens. However, he or she is not allowed to bring a lawyer and does not have the right to remain silent, even if this would incriminate him or her. “This is different to the German civil service”, concedes Andres. But, he says, it is no different to civil service procedure in many of the member states. Battistelli does not consider this a fundamental problem. “We aren’t a German authority. We are part of an international organisation that has its own rules. And the member states laid down these rules in the European Patent Convention”, says the President.

German Vice-President Raimund Lutz takes a similar view. For many years Lutz, a lawyer, was responsible among other things for the intellectual property department at Federal Ministry of Justice. Battistelli is an “excellent” representative of the office, says Lutz, who is at last implementing the reforms that the Administrative Council has long been demanding of his predecessors. The 38 member states of the European Patent Organisation are represented on the Administrative Council.

Strikes and trade union protests have always been part and parcel of the EPO’s history, says Lutz, “but the group has become noticeably more aggressive.” In his view, the fact that Battistelli is standing firm, not making any concessions to his critics and even refusing an external mediator is not indicative of poor conflict management skills; in fact, he believes it is to Battistelli’s credit. “We are coming under fire from the industry because we are the world’s most expensive patent office,” says Lutz. The fees are three to five times as high as in the USA. Battistelli, he says, is successfully tackling these issues.

“The President of the Patent Office does not have the authority to remove a member of the Board of Appeal from office; this is the preserve of the Administrative Council, which ranks above Battistelli.”This view is clearly shared by the other delegates on the Administrative Council, the only body that ranks above Battistelli: in the summer, the representatives of the member states re-elected him by 36 out of 38 votes – a year ahead of schedule and in spite of all the protests. He is to remain at the helm until 2018. “Like other countries, Germany has also supported Battistelli’s reform programme”, says Lutz. However, the protest against Battistelli has been gathering momentum for more than a fortnight and the issue at stake is how the rules on internal investigation are to be understood in practice – and whether they are adhered to by Battistelli.

At the start of December, employees say, the Security department marched into the office of a patent judge who is a member of a Board of Appeal, seized a computer and led him away. Apparently, he has been banned from entering the premises on suspicion of serious misconduct – and has not been allowed to work since. There may not have been any legal basis for this course of action. The President of the Patent Office does not have the authority to remove a member of the Board of Appeal from office; this is the preserve of the Administrative Council, which ranks above Battistelli. The Council only retroactively approved the decision: “The Administrative Council has explicitly found that the measures ordered by the President were “necessary, justified and in the interests of the European Patent Organisation”, states Battistelli.

“Battistelli, argue the judges and patent attorneys, violated the autonomy of the justice system.”The dismissal of the patent judge unleashed a storm of discontent within and outside the Patent Office. Battistelli, argue the judges and patent attorneys, violated the autonomy of the justice system. In a letter to the Administrative Council, 35 members of the Office’s most senior committee, the Enlarged Board of Appeal, wrote that the Patent Office boss is guilty of a “clear challenge to the judicial independence of the Boards of Appeal”. “We condemn this action without hesitation”, write English Lord Justice Christopher Floyd and the Advocate-General at the Dutch Supreme Court, Robert van Peursem. Both are external members of the Board. The European Convention on Human Rights forbids executives from interfering in the work of judges and courts, they say. High-ranking judges from Sweden, Finland, Denmark, Romania, Cyprus and Switzerland concurred with this view.

Two large law firms also wrote letters to the German representative on the Administrative Council, Christoph Ernst of the Federal Ministry of Justice. One of these letters states: “The exercising of disciplinary authority by the “Executive” over the “Judicial” powers at the Office violates the separation of powers and presents a huge threat to the judicial nature of the Boards of Appeal.”

“The Patent Office Boards of Appeal have the authority to make a final decision on these disputes and those decisions are not eligible for subsequent review.”The strength of feeling displayed by judges and patent attorneys is partly a reflection of the special role fulfilled by the Boards of Appeal within the European patent system. Their members, among them the judge who was escorted off the premises, decide on contentious patent cases.

For the companies involved, property rights to inventions are at stake, which are often worth millions or even billions of euros. The Patent Office Boards of Appeal have the authority to make a final decision on these disputes and those decisions are not eligible for subsequent review.

The patent judges are responsible for deciding on disputes surrounding rights to protection: whether the Office rightly or wrongly granted, restricted or refused a patent. In this role, the judges deal with lawyers and examiners. They become party to matters that do not concern their employer’s administrative department – and that are entrusted to judges because they are ostensibly independent.

“Or is Battistelli seeking to exert influence over the decisions of the Boards of Appeal?”But are they really? Or is Battistelli seeking to exert influence over the decisions of the Boards of Appeal? The debate was already raging before the patent judge was suspended, but it has now gained even more momentum.

In an expert opinion, former constitutional judge Siegfried Broß criticises the lack of genuine autonomy of the Boards of Appeal. “It is clear that the President is able to discipline the judges. He merely has to point out to them that, because of their decisions, they are no longer eligible for a promotion,” argues Broß.

Battistelli sees it differently – and dismisses out of hand the reproaches concerning the handling of the patent judge, who, for the time being, is not allowed to fulfil that role: “There is absolutely no basis for the accusations that I am violating the separation of power,” says the Patent Office boss. He argues that the authors of the remonstrative letters are not aware of the facts: “In this case, it is quite clearly not about the autonomy of the Boards of Appeal. The only issue at stake is the suspected serious misconduct of an individual person who could damage the reputation and integrity of the Boards of Appeal and of the Office.”

“The rumours surrounding Topić centre on alleged corruption during his time as head of the Croatian patent office; Croatian newspapers wrote about vanishing funds and official vehicles.”There is no mention of the detailed accusations made against the judge by the Office. However, Battistelli has written in his blog that it involves “disseminating defamatory and injurious documents”. On the day that the accused was banned from the premises, Battistelli also wrote in an internal circular that there was another issue involving a smear campaign that had been ongoing against one of his Vice Presidents for many months: the Croat Željko Topić. That’s why the house ban was imposed. The Munich Public Prosecution Office confirms that it has received a complaint about the alleged defamation “of a member of the EPO’s management”, in which an employee of the office is incriminated. Accusations against Topić have been circulating for months, spreading at the office and also being sent anonymously to journalists. The rumours surrounding Topić centre on alleged corruption during his time as head of the Croatian patent office; Croatian newspapers wrote about vanishing funds and official vehicles. Topić himself has repeatedly denied the accusations.
Furthermore, Battistelli has issued a formal statement supporting him. But now that the complaint about defamation has been made, the Public Prosecution Office must investigate the reasons behind the rumours.

“Outwardly, Battistelli still appears relaxed. But the political pressure is mounting”Meanwhile, as well as the courts, Berlin’s political circles have got involved in the debate about goings-on at the Office. SPD politician Christian Flisek, who has a seat on the Legal Affairs Committee of Germany’s parliament, says: “As the parliament of the country in which the office is based, the issues concern us, even though German law does not apply at the European Patent Office.” In other member states, such as the UK, there are petitions that the competent ministers must deal with. Outwardly, Battistelli still appears relaxed. But the political pressure is mounting.

Strikes have been going on for several weeks at the world’s most expensive patent office

The Security department turned up at the office of a patent judge and escorted him off the premises

BENOÎT BATTISTELLI

“There is absolutely no basis for the accusations that I am violating the separation of powers.”

The European Patent Office is in turmoil: for three days in a row, more than a thousand patent examiners took to the streets in the demonstrations organised by trade union Suepo, which is roughly a quarter of the staff in Munich.

Since this article was published Željko Topić lost his case in a court of law and a new campaign to discredit the judge was launched, not over rumours about Željko Topić but something totally unrelated and for the time being unsubstantiated. No wonder Siegfried Broß is still upset. █

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The EPO’s Investigative Unit Exposed: Part I

Posted in Europe, Patents at 8:01 am by Dr. Roy Schestowitz

Summary: Some new observations about the notorious Investigative Unit, which has turned the EPO into somewhat of a rogue state which necessitates rescuing from the outside (as it has become too rogue to self-heal)

NEW MATERIAL EVIDENCE has emerged to support our allegations that EPO is now an autocracy, at least partly above the law and sometimes covertly so. Speaking to a source we were able to retrieve documents that help show what we long suspected and sometimes knew for a fact about the shady Investigative Unit. It is sometimes referred to as the I.U. or the Investigation Unit. What it boils down to, irrespective of the name, is just a bunch of goons who are loyal to Battistelli. Guess who gave them power?

“Transparency is desperately needed here, especially since many outsiders wonder about the huge surge in complaints from staff, suicides, and so on.”This post is part of a series that will investigate the Investigative Unit and explain how it came about. It is a cautionary tale for any other European institution or politicians who dare consider creating another country within a country (not like Monaco, Luxembourg, the Vatican or Lichtenstein).

This series of posts contains several documents of interest. We also present some general observations about the EPO’s Investigative Unit and its organisational role. In future parts we will talk about individual members of the Investigative Unit and where they came from, what for, and so on. Transparency is desperately needed here, especially since many outsiders wonder about the huge surge in complaints from staff, suicides, and so on.

“As you may have heard,” said our source, “the EPO recently decided to publish its staff rules and regulations.”

The published version of the EPO Service Regulations which can be downloaded from the official web site [PDF] contains the by-now notorious “Guidelines for Investigations at the EPO (Circular No. 342).” The file has over 400 pages in it, so it’s easy to overlook these things.

One has to dig deeper in order to realise that something is amiss. As our source put it, “the published version of the Service Regulations omits a number of interesting documents, including one relating to the Investigative Unit, namely the “EPO Charter for internal Audit and Oversight“. Here is the text which includes the missing/overlooked parts [PDF], an image thereof (because not many people bother opening PDF files), and some excepts from it to follow:

FinRegs – Internal Audit and Oversight

---

EUROPEAN PATENT OFFICE CHARTER FOR INTERNAL AUDIT AND OVERSIGHT¹

The EPO Charter for internal Audit and Oversight “was issued on 17th January 2013 as a “Decision” of the EPO President,” told us a source. It “defines the purpose, scope, authority and responsibilities of the Principal Directorate of Internal Audit and Oversight (PDIAO) also known internally in the EPO as PD 0.6.

“According to the Charter the functions encompassed by PDIAO include “Investigations: carrying out investigations of alleged misconduct, including harassment, in accordance with Circular No. 342, Guidelines for investigations at the EPO”.”

“So, in simple terms, this isn’t really an objective apparatus but a means for subjugation.”The definition of harassment is often so vague and the scope is so broad that harassment by the EPO President is excused or altogether ignored. These are just instruments of power, to be used only by those in positions of power, selectively. It’s similar to the application of mass surveillance, where everyone is a suspect and anyone can be framed upon demand (there is so much data which can be put together in a misleading fashion).

“What is of particular interest here,” explained our source, “is Part IV of the Charter which deals with “Authority and responsibilities”.

“From section (5) we learn that the Head of PDIAO reports administratively to the President and is directly subordinate to him alone and answerable to him for disciplinary purposes.”

So, in simple terms, this isn’t really an objective apparatus but a means for subjugation.

Why is this significant? Our source tried to explain this in relation to some background information. To quote this in bulk:

When questioned about the Investigative Unit, the standard response of EPO management is that such units are commonly found in international organisations (IOs) like the EPO. Statements along these lines can be found in the article entitled “Staat im Staate” (“A state within a state“) which was published in the weekend edition of the Süddeutsche Zeitung on 20/21 December 2014 .

But the self-serving official narrative of EPO management conveniently omits to mention that in other IOs the Investigative Unit typically reports directly to the governing body.

The EPO seems to be unique in this regard because its Investigative Unit is entirely subordinate to the executive head of the organisation (the President).

Even more surprising is the fact that all of the rules and regulations relating to the operation of the Investigative Unit, such as Circular No. 342 and the PDIAO Charter, were single-handedly signed into existence by the President without any formal approval by the EPO’s governing body (the Administrative Council).

Another detail worth noting here is that in other IOs the appointment and dismissal of the head of the Investigative Unit is typically a decision of the governing body, or at least subject to the approval of that body. That means that the head of the Investigative Unit enjoys a certain degree of independence vis-à-vis the executive head of the organisation and, once appointed, can only be removed from office for serious reasons and if the governing body agrees. Compare that with the arrangement at the EPO where the President has unfettered discretionary control over the appointment and dismissal of the head of the Investigative Unit.

To put all of this into some kind of comparative perspective, recall that in June of this year, as reported by Gene Quinn of the US-based blog “IP Watchdog”, the Chair of WIPO’s General Assembly which is the governing body representing the 188 member states of that organisation, requested that the U.N.’s internal watchdog, the Organization of Internal Oversight Service (OIOS), initiate an investigation of the Director General of WIPO, Francis Gurry.

Such a scenario is unlikely to occur at the EPO, because the EPO lacks any mechanism for an independent investigation of alleged misconduct on the part of its executive head.

Under Circular No. 342, the President of the EPO has complete control over all investigative activity at the EPO and he has used this Circular to create an arrangement which for all practical intents and purposes renders himself immune from investigation. Even if the Administrative Council had the political will to investigate the President, it lack the means to do so!

So what we have here, in effect, is a situation in which the rules and regulations governing the operation of the EPO’s Investigative Unit place more or less absolute power into the hands of the President. What is even more extraordinary is that these rules and regulations were single-handedly signed into existence by the President himself without any formal approval from the Administrative Council.

To appreciate the wider implications of all this it necessary to recall that according to the European Patent Convention, the governing body of the European Patent Organisation, the Administrative Council, is responsible for the adoption and amendment of internal legislation governing the European Patent Office.

Article 33 of the EPC defines the competences of the Administrative Council to adopt and amend the various internal rules and regulations, in particular the Service Regulations for permanent employees and the conditions of employment of other employees of the European Patent Office.

By means of Circular No. 342, the President of the EPO basically signed new staff regulations into existence without going through the normal legislative process which would have necessitated the approval of the Administrative Council.

Now we know how the Investigative Unit came into existence and where it derives its power from and at whose command (or chain of command). The next parts will look deeper into who enabled the Investigative Unit to operate so recklessly and who is actually operating within it and how. █

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GNU/Linux and Free/Libre Software Dominance: What It Comes Down to is Patents

Posted in Apple, Finance, Free/Libre Software, GPL, Microsoft, Patents at 6:38 am by Dr. Roy Schestowitz

Proprietary software companies like Microsoft, Apple, Oracle etc. want lawyers to run their business

Summary: A decade after Free/libre Open Source software (FLOSS) surpassed its proprietary counterparts on technical terms/merit it is facing an increasing number of patent challenges, as well as disruptive takeover attempts

TECHRIGHTS was born out of the need to tackle Microsoft’s patent war on GNU/Linux. Back in 2006 Microsoft saw innovations such as Compiz whilst it had a lousy operating system called Vista (which even Microsoft executives were internally ranting about). It knew it was only a matter of time until Windows loses dominance outside the server room. Fast forward to 2016 and Android is expected to have nearly 90% of the market. Windows is in a state of disarray and Microsoft now tries to force people to use it, even if they don’t pay for it and don’t want it at all.

“Microsoft promotes lawyers to high management and tries to make patent extortion its new cash cow.”Microsoft tried to evolve, but it was all in vain. Remember the Microsoft Stores? Remember Surface (both the old and the new)? Microsoft is losing a lot of money in the hardware business (faulty by design [1]) and the online business (promises are being broken now in an effort to raise money [2]). Microsoft is now borrowing money — a lot of money in fact — to pay debts [3], confirming what we knew all along about Microsoft’s real financial situation.

As a result of Microsoft’s panic (losing billions of dollars) the company launched patent assaults on various companies (OEMs) that distribute Linux/Android. Microsoft promotes lawyers to high management and tries to make patent extortion its new cash cow. It is also disrupting Android from the inside, in an effort to better control it. Last month we wrote about Xamarin‘s (Microsoft proxy) takeover of RoboVM [1, 2, 3, 4] (still a subject of critical debate). Paul Krill wrote that “Hammond sees the bigger issue as Xamarin’s acquisition of RoboVM and its desire to support RoboVM iOS apps in the Apple App Store, which has taken a dim view of GPL licenses to date.”

Apple — like Microsoft — is also attacking Android backers like Samsung, using software patents that are inherently incompatible with the GPL. Apple is still bickering over patents in an effort to derail the dominant Linux-based platform, Android, according to this new report.

We expect the last remaining barrier for the triumph of Free software everywhere to be patents, and especially software patents. We are changing our site’s focus accordingly. █

Related/contextual items from the news:

1. Microsoft’s Surface Book laptop is almost impossible to repair

   IFIXIT HAS taken Microsoft’s first laptop apart and found that it’s probably not a good idea to try to fix it yourself.

   Microsoft’s latest device went on sale last week in the US and has yet to see a UK release, but the people at iFixit have cracked it open and explained exactly what’s going on inside. And it’s not good.

2. Microsoft is breaking its cloud-first promise

   There’s already a backlash against Microsoft’s surprise announcement, and it’s not a good look for the company given its impressive focus on mobile and the cloud. Microsoft is fighting a war against Amazon, Google, Salesforce, and many others for the business side of the cloud, but its consumer efforts are starting to look a lot more like Apple’s iCloud offering. Apple offers the bare minimum of free storage and entices consumers to pay more for iCloud by making its apps and operating system make the most of the cloud. Microsoft is now bullying OneDrive users into paying for the free storage it is now taking away.

3. Enslaving M$

   It’s kind of embarassing to have to borrow money to pay debts… but that’s what M$ continues to do. It has $100 billion in liquid assets but it can’t repatriate them to USA without forking out a ton of money to Uncle Sam for taxes, so it borrows money at this end to pay for what it does day to day. The problem is chickens come home to roost. When the day inevitably comes that the world sees M$ has no clothes and that M$ is not the one true source of IT, the gravy train ends but the debts will have to be paid. At the last 10-Q quarterly report, M$ reported $36billion in short+long term debt. Now about half it’s liquid assets will be needed just to repay that debt.

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