11.29.15
Posted in Europe, Patents at 1:34 pm by Dr. Roy Schestowitz
People Power [1, 2] is power in numbers
Over 1 Million in Tahrir Square demanding the removal of the regime and for Mubarak to step down.
Photo source: Jonathan Rashad
Summary: Where things stand when it comes to the EPO’s standoff against publications and why it’s advisable for EPO staff to stage standoffs against their high-level management, which is behind a covert crackdown on independent media (while greasing up corporate media)
THERE is an occasional need for us to remind readers that the EPO besieges Web sites that upset its agenda, which judging by its priorities is to appease large corporations even when these are foreign (outside the EU). This is further exacerbated by privatisation of some key/core functions of the EU, such as litigation, investigation, and PR (the EPO has those internally, but it hires or contracts ‘reinforcement’ from the outside, where accountability is even worse or non-existent, and different laws may apply, e.g. in the US).
In the first two parts of this mini-series [1, 2] we showed how the EPO had been trying to silence us.
What has really become of the EPO? It doesn’t seem to behave like a public service run by public servants. It operates recklessly, misuses or poorly uses public funds, and has established a rogue reign of occupation over Europe, enjoying exemptions from laws and regulations that are consistent with human rights.
“How can it be?”
Some people actually ask that. They’re rather shocked by the very idea that this is even possible. But it is. Moreover, this rogue institution is becoming so threatening (menacing its opposition) that it sometimes seems untouchable even to European politicians. It’s like a very effective occupation of an institution, which revels in immunity/impunity and flaunts the privilege.
Back when the first batch of threats were no longer being dispatched I sent the following message to just a couple of people whom I trust:
A letter came in today. It seems like the EPO dumped their lawyers who sent me the bullying letters, perhaps realising that these did not comply with protocols and only caused an embarrassment to the EPO.
It looks as though the EPO is now approaching another firm; it’s not clear if anything will come out of it, but for the time being, I shall carry on writing as usual.
“Thanks for the update,” told me one person. “If they get better lawyers, those should understand proceeding is not a good idea.”
“The previous [legal] firm’s attempt did seem somewhat amateurish…”
–Anonymous“The previous firm’s attempt did seem somewhat amateurish,” told me another person, who is a professional in this field.
Please note that in our coverage no names have been mentioned, no sentences quoted from legal letters, no legal documents shown and so on.
For those who follow the EPO scandals, don’t expect legal documents to be published. I’m not getting down to the low level of the EPO’s thugs (who ‘leaked’ allegations from an ongoing ‘investigation’ to the media, in order to float the ‘armed Nazis’ narrative, thus discrediting critics). I am also not going to name people who are responsible for this, as that would make personal an institutional kind of abuse.
Judging by what I saw online two weeks ago, the vultures were still circling around me, as the following screenshot was taken from my LinkedIn account, showing that the EPO’s lawyers were keeping themselves occupied.
“Mishcons are an aggressive firm,” one person said to us. Well, the EPO itself is aggressive, so there’s no surprise there.
“Actions by staff (in the form of showing of public/internal backlash) help shield journalists and bloggers from retaliatory tactics, SLAPP, etc.”A little update from the EPO would be appreciated, but they refused to even supply the media with a comment, based on the WIPR article. They probably don’t know what to say as it can only make things worse. Basically, there’s no update and there has been no update for nearly a month. A legal firm (as above) said it had taken control of the matter, which probably meant the previous firm got dumped. It has been over 3 weeks now. I did notice that one secretarial (I think) member of staff at that firm was ‘checking me out’ in LinkedIn, but that too was almost three weeks ago; maybe an effort to get some additional ‘information’ on me or just innocent curiousness? Given the context, it is unpleasant curiosity. I haven’t added anything meaningful to LinkedIn since 2006 when a ‘friend’ had me set up an account there (I am in principle against such ‘social’ media, which gets more intrusive and privacy-infringing over time, after changing terms of services for people to waive away more their basic rights).
Given what Techrights has been writing and publishing recently (not to mention the EPO’s ‘spontaneous protests’) we hope they’ll realise that going after bloggers isn’t a wise decision. The math doesn’t add up as they have more points to lose than to gain in the long run. Actions by staff (in the form of showing of public/internal backlash) help shield journalists and bloggers from retaliatory tactics, SLAPP, etc. This is why we urge everyone at the EPO (except high-level management) to attend the imminent protests.
“They don’t seem to know what they are doing and what they’re up against, hence they hired peripheral union busters like CRG (Control Risks).”The EPO’s high-level management is really struggling these days; it took them no less than 4 days to come up with an answer to the basic question of who’s behind the SLAPP, as it was invalid a claim to begin with, so they had to try and use some dubious artistic interpretation of the law. They don’t seem to know what they are doing and what they’re up against, hence they hired peripheral union busters like CRG (Control Risks).
Tomorrow we start covering another (new) EPO scandal and we encourage staff to attend the public demonstration, at the very least to protect staff representatives if not journalists too. The more people attend, the more scared the high-level management will feel. It’s getting out of hand because they cannot just fire thousands of their highly-qualified specialist staff (examiners for example). Power comes from and is proportional to absolute numbers. █
“I am Legion, for we are many”
–New Testament
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Posted in Europe, Patents at 12:19 pm by Dr. Roy Schestowitz
“A SLAPP is a lawsuit, filed for the improper purpose of trying to silence criticism, or to prevent someone from pursing their own right of redress. The typical SLAPP plaintiff does not care whether he wins the lawsuit, and often knows he has no chance of prevailing. The plaintiff’s goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. As a bonus, if the SLAPP plaintiff can garner notice in the media, or even among the defendant’s circle, a SLAPP suit may also intimidate others from participating in the debate.”
–Aaron Morris
Summary: Legal analysis by various people explains why the EPO’s attack dogs are all bark but no bite when it comes to threats against publishers
THE EPO‘s dubious attack on our free speech appears to be a lot more dubious than people even care to recognise because they don’t know about the EPO’s immunity and impunity (it’s effectively above the law, but just conditionally). UK Defamation Law does not permit the EPO to do what it threatens to do. As some of our readers pointed out to us:
We saw the article about the EPO’s legal threat against you.
Here are a few comments off the top of our heads.
First of all we noticed that the article objected to contained a reference to Grant Philpott. The “edit” to the WIPR article involved removing Philpott’s name (as he was named in the original WIPR report).
For what it’s worth, Philpott is British and he used to be in the British Army (many years ago). This is no secret. We have no idea what significance if any this might have to anything or if it’s just coincidental. [...] However, we think that all of this may (hopefully) backfire on Battistelli and his crew. [...] Our understanding of the situation is that if the EPO does go to court it will have to lift its immunity. That could be quite dangerous for them.
You need to be aware of the Protocol on Privileges and Immunities (PPI) [...] look at the PPI in particular Article 20: “(1) The Organisation shall co-operate at all times with the competent authorities of the Contracting States in order to facilitate the proper administration of justice, to ensure the observance of police regulations and regulations concerning public health, labour inspection or other similar national legislation, and to prevent any abuse of the privileges, immunities and facilities provided for in this Protocol.”
If the EPO decides to go to court, then it will be obliged under Article 20(1) PPI to “co-operate [...] with the competent authorities of the [U.K.] in order to facilitate the proper administration of justice [...] and to prevent any abuse of the privileges, immunities and facilities provided for in this Protocol.”
On that basis, we suppose that you could lodge requests for discovery of documents etc. and that the EPO would have to comply if they want to pursue any action against you.
They shouldn’t be allowed to misuse a UK (or other national) court in an attempt to prosecute you while at the same time being allowed to hide behind their cloak of immunity. Refer to the legal principle of “equality of arms” which should apply in a UK court.
If the EPO tries to get “serious” about court proceedings, then maybe you can request that the court obtains a binding undertaking from the EPO that it waives its immunity from jurisdiction and execution for all matters relating to the case including any counter-claims that you may make against them.
This could be the biggest mistake that Battistelli has made so far.
By trying to muzzle free speech outside the EPO he is moving outside of his normal “comfort zone” where he gets to make and break the rules as he pleases. There is also a high probability that this attempt to take legal action against a “blogger” could attract a lot more “mainstream” interest in the whole affair (à la Streisand).
We are sceptical that Battistelli really wants to go before a national court with stuff like this. It sounds more like scare tactics – but maybe he is sufficiently bonkers to try it…
We will be following developments with close interest. [...] we are not experts in UK defamation law but we had a quick look at the Defamation Act of 2013 and we noticed a few things that might be relevant for your situation.
Under Section 1 of the Act, “harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.”
The EPO is not a “body that trades for profit” so it is not covered by that Section to begin with. Anyway, it’s doubtful that they could show any “serious financial loss” from Techrights publications.
We also noted that according to the Wikipedia page relating to the Defamation act: “Non-natural persons performing a public function do not have an action in defamation against any statement concerning that function.”
If that interpretation of the law is correct – which it seems to be – then it’s difficult to see how the EPO could possibly have any success in trying to initiate a defamation action against Techrights in a UK court.
That’s just our opinion but hopefully lawyers can confirm.
“You might find this amusing,” they added later, “click on the photo of the author at the top of the article.” (posted by this person just one week after the threatening letters started to come)
One person asked us: “Can you tell me if [this person] is on the EPO staff or if they have engaged an outside firm? It might be worth investigating the nature of his previous practice record.”
“Hitherto, external entities have become richer thanks to undisclosed budget from a public purse.”Well, what’s perhaps troubling here is that private companies are again being used by the EPO. The EPO already has its own (in-house) lawyers. Hitherto, external entities have become richer thanks to undisclosed budget from a public purse.
The above isn’t out of the ordinary. We recently learned that WIPO too tried to silence a blog with legal threats. It happened some years ago. The blog received, according to what we learned, “a phonecall from one of the Deputy Directors-General followed by two legal letters before action, only to discover that, as a body established under an international convention, WIPO didn’t have the legal power to sue or be sued in any national court. This may be so for the EPO, one way or other.”
Well, apparently, based on what PatentBuddy wrote in Twitter last week, WIPO also threatened Gene Quinn (another blogger) in a similar way. It happened not too long ago. Why the overreach? Was this SLAPP as well?
“By this point, we have written nearly 400 articles about the EPO (we have focused on deeper affairs for over a year now).”Well, many states in the US have anti-SLAPP laws (not all states, but see for instance California SLAPP Law). There are also things like blogger protections (depending on definition of journalist, blogger, forum etc. with salaried/non-salaried being a factor). Why are public bodies taking the risk of trying to keep bloggers quiet? Can they not foresee backlash?
By this point, we have written nearly 400 articles about the EPO (we have focused on deeper affairs for over a year now). There seems to be serious institutional abuse there and in recent months the British media too started covering these matters (in big numbers, citing Techrights). Private Eye picked up this story and publicised the scandals (using evidence from Techrights). That’s why the EPO must be so worried. English-speaking media has very broad reach, unlike Croatian media for example. We therefore assume that they just try to intimidate or silence the site. Well, the site is already BLOCKED (for the first time in history) from within EPO offices. They clearly try to keep it quiet, to keep staff unaware of it, but the harder they try, the more sources (whistleblowers) turn to to the site with new and explosive leaks. We even got some more earlier today… we’re now drowning in material.
“This behaviour from the EPO is intended to discourage writing (they start by nitpicking on one article, only to try others later).”Based on the wrong name being in the legal letter (they address me by a completely wrong surname*), they’re on some kind of a new campaign to silence the media. I’m not the only target and I was warned about this recently. More people now come out (privately at least) and speak about growing pressure from the EPO (see what was posted here last month, there is a long history to it and the story of unitary-patent.eu may be one of very many). For reactionary leverage, some suppose, victims of EPO bullying could invoke the Streisand Effect and let people raise awareness of what EPO is attempting to do here. That kind of coverage would definitely annoy the majority of EPO workers (there are around 7,000 of them), and maybe lead to more effective and much broader a standoff/demonstration.
This behaviour from the EPO is intended to discourage writing (they start by nitpicking on one article, only to try others later). Based on the letters, this is action from the EPO itself, not an individual. SUEPO’s site was also recently silenced (back in September), probably using a similar kind of letter, maybe even from the same firm.
“There is an atmosphere of fear and terror at the EPO and we can’t help thinking of FIFA and Volkswagen for parallels.”We often wonder if, even after publication, a lot of publishers silently censor their articles (removing words or entire paragraphs) without us even noticing it. We started saving articles about the EPO for this reason (for later comparison, as recently shown here). Journalists and publishers are made afraid to the point where very serious violations can go on and on. People commit suicide and next month we are going to write about what motivates (at least some of) these suicides. We have more damning information about the EPO, but we keep it under the wraps because it’s so damning that it would put people’s careers at risk if published (the subject of the articles being at risk, not the sources). There is an atmosphere of fear and terror at the EPO and we can’t help thinking of FIFA and Volkswagen for parallels. █
______
* Wrong name being addressed to indicates they may have reused a template, as they have been muzzling other people as well (this other name too is German and the EPO is based in Munich).
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Posted in Europe, Patents at 10:28 am by Dr. Roy Schestowitz
The European Patent Office (EPO) is strong-arming bloggers
Summary: Using external legal firms (not the EPO’s own lawyers), the EPO has been trying — and failing — to silence prominent critics
THE EPO‘s war on journalists has been covered here for almost a week. 5 days after WIPR broke the story it is still the most popular topic at that news site and this story has since then attracted wider and further media attention. There are 5 large threads in Reddit right now, in five different sections, posted by numerous individuals and groups we don’t know and aren’t typically focused on legal matters. This is going mainstream!
We are starting to find out some interesting things from interesting people. Another news site told us, “you are not the only person coming under pressure from the EPO right now.” It also prudently responded and advised us by saying “do assume, if you are not already, that your private e-correspondence is being monitored and read.” Recall the following older articles of ours:
This article will present my solicitor’s response to the EPO’s lawyers, who are actually — like much of the EPO's staff these days — from a private company that we won’t even mention. What the EPO has done here is amazing. It’s amazingly stupid. They took a crisis that mostly involved the ‘IP’ community into a mainstream audience. The EPO is now a laughing stock in many circles and emergency funds are now being retrieved from the taxpayers’ pot to hopelessly undo the damage (it will only backfire again, we can guarantee it).
“They took a crisis that mostly involved the ‘IP’ community into a mainstream audience.”As we know that not only Techrights was subjected to legal bullying by the EPO, we wish to make as much information as possible widely available. It can help any future victims of EPO bullying, as it includes legal material which shows how to respond to the EPO and call their bluff.
I spent 6 hours this morning going through piles of material. I was hoping to get a full E-mail trail (in and out, incoming and outgoing) suitably picked and redacted where required. It all started with a legal letter from a firm contracted by the EPO. Readers are advised to remember that we start this chronology a month and a half ago (15/10/2015 onwards), so some of the text below should be treated and read in contextual relation to the time and what was known back in October, well before additional information got leaked and covered on the Internet.
“The original/seminal nastrygram from the EPO was sent at 22:57 (local time) on Friday.”THREE LEGAL LETTERS have been sent by the EPO’s first law firm and another by the second one. We’re not talking about one legal letter here, contrary to some belief (as witnessed on the Web). Today’s publication of facts will be split into 3 PARTS in order to better organise the material and make it easier to cross-reference in the future.
The original/seminal nastrygram from the EPO was sent at 22:57 (local time) on Friday. It was sent not just to one E-mail address of mine but to several, saying: “Please see attached legal letter for your urgent attention.”
How the legal firm found several of my E-mail addresses is itself a bit of a mystery, but either way, these people were very eager to ensure that I read this mail late at night on a Friday. We won’t name the firm or the people who sent those letters. Also, as they demand confidentiality in all of their letters, we cannot or will not publish them. We won’t break the rules like the EPO so habitually does. We leave the dirty tricks to the EPO. We’re cleaner than them.
“We won’t break the rules like the EPO so habitually does.”Techrights wishes to thank David Allen Green (Preiskel & Co.) not just for doing a sterling job but also doing this out of goodwill. “I should be able to do this one pro bono,” he wrote to us at a very early stage, “still finding out.” David Allen Green was upset at the EPO’s behaviour and was immediately engaged in helping us, even on a weekend (remember that nastygram was sent late on a Friday night). David asked me for permission to respond to the lawyers and state that: 1. the letter sent was not in accordance with the pre-action protocol; 2. it is denied EPO has capability to sue; 3. the post was taken down without any admission of liability; 4. you require 14 days to provide a substantive response.
We ask dear readers to carefully consider the situation these people put me in late on a Friday night. It’s a kind of entrapment. If David Allen Green didn’t jump in as early as Saturday, the course of action from the EPO would probably have been more severe, not because it’s permissible but because they can exploit lack of awareness of the law, or even misrepresent the law (a familiar EPO trick). Here is the first response sent to the EPO’s contracted (external) lawyers, who seem to have sent similar nastygrams to other people.
Dear [Anonymised]
I have been approached by Roy Schestowitz in respect of your letter which was attached to the email below.
Your letter is remarkable. The letter does not accord with the relevant pre-action protocol. Indeed, it looks like that you are not even aware that there is a pre-action protocol.
But that is not the worst thing. The “urgent” letter was sent at 22:57 on a Friday, with a supposed deadline of noon the following Monday (that is, today). This is akin to simple legal bullying. It was clearly intended that Mr Schestowitz would be intimidated and be forced to act without proper access to legal advice.
It gets worse. Not only do you seem unaware of the pre-action protocol, you do appear to know that the Defamation Act 2013 is in force, which requires your clients to meet a test under section 1. You don’t even mention the appropriate statutory test, let alone attempt to show how your clients meet it.
And finally: the European Patent Office is a public body. Under the Derbyshire principle it would not be able to maintain an action in defamation.
I am currently putting the paperwork in place so that I can be formally instructed by Mr Schestowitz. As such this email is sent on his behalf but I anticipate to be formally acting for him very shortly. I am only writing now because of the misconceived deadline you selected.
It is not accepted that your letter is a valid letter of claim, and so my client’s position on this point is reserved. However, and without limitation to the foregoing sentence, you will now get a formal and substantive response to your letter within the 14 days set out in the protocol (that is, by 30 October 2015). In the meantime my client has taken the posts down without any admission of liability.
If your clients are daft and ill-advised enough to issue proceedings before receiving the formal and substantive response (and in breach of the protocol), I will advise my client to seek indemnity costs against your clients, in addition to his other rights and remedies.
My client’s position is reserved.
Yours sincerely
David Allen Green
The EPO’s goons then sent another nastygram. By that time, David Allen Green had already consulted specialists/domain experts, who brought up a legitimate point, so he responded as follows:
Thank you for this latest letter. I will take instructions.
In the meantime, I have now discovered the European Patent Office has no legal personality. If the EPO is not a legal person it cannot maintain an action in defamation or otherwise.
Can you please tell me exactly who your client is in respect of the threatened claim by EPO?
“They are becoming comical,” I said, at the very least “because yet another article which is factually correct they are trying to get removed now. Even large broadcasters serve to support my claim — hence they want to retaliate. They don’t like the bad publicity, which now [at that stage] reache[d] everyone in Munich.”
Remember that all of this was happening while the press was still hammering hard on the EPO for preferential treatment favouring large applicants. The EPO was hoping I would retract what I showed and perhaps help them censor the media (which was always linking to Techrights for evidence). Attempts to censor the original source of leaks or force a public apology/restraction is a classic censorship strategy. I just had to fight back.
Here is what my solicitor then wrote:
Dear [Anonymised]
We have read the second letter, and I am still taking instructions and will reply substantially by the stipulated deadline tomorrow.
In the meantime, however, note the following, including the renewed request for information.
So far: you have sent an initial letter which did not mention the relevant protocol, including making a threat on behalf of one named client (“EPO”) who cannot maintain an action in defamation (under the Derbyshire rule) and does not even have legal personality. You also forget to set out anything at all about the section 1 test in the initial letter.
With respect, you do not seem to actually know what you are doing. It looks like you are dabbling in defamation law. You are making basic errors almost every paragraph.
You have now – desperately – come up with “malicious falsehood” and “confidentiality” – but you do not set out the bases of your claims in respect of either claim. You should have realised the significance of the Derbyshire rule before you sent your threatening letter. But you failed to do so, and now you are now threatening actions in “malicious falsehood” and “confidentiality” without even providing basic information about how you clients make out the elements of either cause of action. It just looks ridiculous.
I asked you earlier today at 10:40 (below) to set out who your “EPO” client was; and despite the supposed “urgency” I have not had a reply, some five hours later.
Please respond by 1700 today stating which legal person your “EPO” client actually is. Otherwise I will assume you actually do not know.
Yours helpfully
David Allen Green
A later letter stated:
Dear [Anonymised]
Further to the below, this is the response to your second letter (of today’s date).
There is nothing whatsoever in the second letter to justify a deadline of tomorrow. So your client(s) can wait until the letter we are sending to you on or before 30 October 2015, in which we will deal substantially with both letters.
You said this morning this matter was “urgent”. I immediately sent you a straightforward query about the identity of one of your named clients, who is not even a legal person. Despite the purported “urgency” neither of you have bothered to respond at all, in over six hours.
In the interests of keeping costs proportionate, I do not propose to correspond further with you on either of the letters sent until the substantive response on or before 30 October 2015.
For completeness, and also in the interests of inter partes co-operation to control costs, I can tell you that my client reserves his right to plead a defence of truth to the claims, and this means that any pre-trial injunction you might seek would not be granted, pursuant to the rule in Bonnard v Perryman [1891] 2 Ch 269.
And, as I set out in the email below, if your clients are daft and ill-advised enough to issue proceedings before receiving the formal and substantive response (and in breach of the protocol), I will advise my client to seek indemnity costs against your clients, in addition to his other rights and remedies.
Yours sincerely
David Allen Green
Without much regard to the part about “keeping costs proportionate”, the EPO continued rather than relented with legal letters. Another one “came in on Friday,” my solicitor told me, “just an attempt to recover on the “no legal personality” point.”
Finally, here is the detailed letter sent to summarise all the points, including some of the above:
Dear [Anonymised]
I refer to my email below. I have looked at your letters carefully, and I have also discussed the contents with specialist counsel.
As you are both aware, the purpose and intention of the pre-action protocol is to facilitate the early exchange of information, so that cases can be properly dealt with. Accordingly, I am writing this email so as to obtain additional information which we require to consider your claim.
1. Legal personality
In respect of the European Patent Office, I am still not clear as to which legal person is seeking to threaten and maintain an action in defamation. In your first letter you said you were acting for the European Patent Office. Now you are saying you are acting for the European Patent Organisation. (It is just as well they have the same initials!) But the position of the European Patent Organisation is not what you set out in your initial letters, and now the position is confused and nees further clarification, as I set out below.
2. EPO Immunity from suit, from and costs and disclosure orders
Is your “EPO” client (whoever it is) formally waiving its legal immunity to countersuit and, more importantly, to liability for any costs and disclosure (and other) orders? Are you even aware that your EPO client’s immunity from suit (and to comply with costs and final orders) is at stake here? The position on your “EPO” client’s immunity from costs orders needs to be clarified as a matter of urgency, as it affects the costs sanctions and disclosure regime.
3. Derbyshire
In any case, the Derbyshire rule provides a complete defence to any claim your EPO client can bring.
If your “EPO” client is daft enough to put this trite proposition to the test, then I will seek indemnity costs from your client from the moment this obvious truth was pointed out to them. You say (in your 20 October 2015 letter) that you “reserve” your position on Derbyshire, as if some magical proposition will somehow appear which allows you to get around it. You will not get round it; your “EPO” client simply cannot maintain an action in defamation, as a matter of public policy.
4. Meanings
In respect of alleged meanings, it is currently impossible to work out your clients’ respective positions. This is for two reasons.
First, as mentioned above, your letter of claim does not mention the European Patent Organisation, and nor do the words complained of. You need to set out how my client’s words refer or relate to an organization which is not named by him, and how you say the words complained of apply to the European Patent Organisation. There is an “identification” issue which you simply have not addressed.
Second, your letters do not separate out the potential claimants, and indeed your inconsistent use of the apostrophe when mention your clients’ (or client’s) makes it impossible for us (and the court) to work out which of your clients you are talking about at different parts of your letters. Perhaps you did not know; but this needs to be clear at the earliest possible stage.
5. Libel bullying and the public interest
Without limitation to any of the above, there remains the horrible and discrediting issue of libel bullying. Here I want to raise the issue of the public interest. The work of the EPO is a matter of legitimate public concern. There is, as your client knows, a significant public debate as to the work of the EPO; a debate to which the EPO is itself contributing, and which is taking The effect of sending libel threats such as yours will be to inhibit that debate.
This is plain in your demands that entire articles be taken down, rather than just the words complained of. This cannot be justified. In essence this appears to be an exercise by a public body to discourage public criticism.
6. Further information now required
In essence, before we can properly reply to any threat that either of your clients may wish to bring, we now need the following information:
a. Separate letters before action for each client in respect of defamation, separating out their respective alleged meanings and words complained of;
b. An explanation as to why the EPO is not covered by the Derbyshire rule;
c. Confirmation that your EPO client is waiving immunity from countersuit, and waiving immunity in respect of compliance with costs and disclosure orders and final orders (together with an executed legal instrument by the President of the European Patent Organisation confirming this formal waiver);
d. A separate explanation in respect of each client of how that client meets the section 1 test in respect of defamation;
e. An explanation as to why your clients were demanding entire articles should be brought down rather than just the words complained of, and how this does not constitute “libel bullying”.
Please provide this information within seven days, by 6 November 2015, so that the aims of the protocol can be achieved.
7. Next steps
Once we have the information requested, and subject to what it says, we can then in turn set out the relevant defences under sections 2, 3 and 4 of the Defamation Act 2013. Facts will be defended as facts; honest opinions will be defended as honest opinions; and a public interest defence will also be set out. My client intends to defend his words on the bases available to him under the Defamation Act 2013.
So that the protocol will be complied with, I would then provide the defence(s) to you within 14 days of your provision of the information requested above, that is by 20 November 2015. In the event that your clients issue proceedings immaturely, and before 20 November 2015, your clients are put on notice of the costs consequences. I am acting within the scope and spirit of the protocol so as to resolve this at pre-action stage, and so should your clients.
If you do not provide the requested information by 6 November 2015, then we will regard the matter as having come to a close.
My client’s position is reserved.
Your sincerely
David Allen Green
In the next couple of parts we intend to show where things stand. It looks as though the EPO ran away with its tail between its legs. We thank David Allen Green (of Preiskel & Co.) for that. █
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Posted in America, Europe, Microsoft, Patents at 5:50 am by Dr. Roy Schestowitz
Summary: Lessons from US media, which focuses on the dire situation in Texas courts, and how these relate to the practice of granting patents on software (the patent trolls’ favourite weapon)
OUR primary concern about the EPO has always been the effort to expand the scope of patents to software (so as to make more money and help multinational oligopolies which constantly lobbied Europe for it).
“At the start of the 1980s, federal policy remained so hostile to patent monopolies that it refused even to grant patents for software. But then came a series of Supreme Court decisions and acts of Congress that vastly expanded the scope of patents and the monopoly power granted to patent holders.”
–The AtlanticIt has always been pointed out, on numerous occasions in fact, that patent trolls rely mostly on software patents. These trolls already knock on Europe's door, having been extremely damaging to the economy of the US, where they crushed a lot of small businesses. This new and very long article from The Atlantic recalls how things changed more than three decades ago, with so-called inventors like Martin Goetz. The article speaks of “dramatic changes in the treatment of what, in the 1980s, came to be known as “intellectual property,” combined with the general retreat from antitrust enforcement” (to benefit oligopolies).
The article says this “had the effect of vastly concentrating the geographical distribution of power in the technology sector. At the start of the 1980s, federal policy remained so hostile to patent monopolies that it refused even to grant patents for software. But then came a series of Supreme Court decisions and acts of Congress that vastly expanded the scope of patents and the monopoly power granted to patent holders. In 1991, Bill Gates reflected on the change and noted in a memo to his executives at Microsoft that “[i]f people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.””
Well, how ironic it must be that Microsoft is now the world’s biggest patent bully (in some respects) and it even managed to make the EPO more megacorporations-leaning.
“Well, how ironic it must be that Microsoft is now the world’s biggest patent bully (in some respects) and it even managed to make the EPO more megacorporations-leaning.”Public complaints in the US are mostly over patent trolls these days. The complaints rightly focus on East Texas, the trolls' docket. Another new article says: “East Texas is known for its Piney Woods, Caddo Lake, maybe for sweet potatoes. It’s also the patent lawsuit capitol of the country. More patent infringement cases are brought to Eastern District courts than anywhere else. There’s pressure to root out the so-called “patent trolls”.”
Published on the same day, this new article rightly observes that “software technology is becoming a treasure trove for Patent trolls.” To quote in context: “In furtherance to my recent post on Patent trolls or the Non Practicing Entities (NPEs), I would like to discuss here in this post about how software technology is becoming a treasure trove for Patent trolls. Cloud based business products are one of the major business fields today. Software-oriented platforms such as C (SaaS) providers are primary targets for the Patent trolls.”
It is vital to realise the strong correlation between software patents (patents on abstract concepts) and patent trolls in order to ensure that the failings seen in East Texas don’t reach Europe as well. █
“Americans learn only from catastrophe and not from experience.”
–Theodore Roosevelt
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