01.26.16
Posted in America, Patents at 2:58 pm by Dr. Roy Schestowitz
Summary: A long roundup of recent patent news from the US, where things are changing for the better in some aspects but are still pretty grim, mostly because of the centralisation of patents (very few corporations holding the lion’s share) and widespread exploitation by trolls
THINGS in the United States have changed rather drastically since the Supreme Court (SCOTUS) ruled on Alice with that silly software patent. Gradually, if not reluctantly too, the USPTO amended its guidelines so as to become more in line with courts’ judgments (which as a consequence of Alice chose to invalidate a lot of software patents). This long post will provide an overview of some of the things that happened earlier this month.
CAFC
The Court of Appeals for the Federal Circuit, often referred to as CAFC (shorthand), is where software patents got started. It’s also where many of them came to survive, or to receive the court’s blessings. We covered many examples of this before and after the Bilski case. According to the patents-centric (and pro-software patents) blog Patently-O, patent litigation continues to be a major headache where only lawyers win. “The Federal Circuit did not award fees or costs to either party,” the post concludes. Patent examiners and applicants ought to be aware of what patent lawyers are really after when they encourage patenting, lawsuits, etc. They always win, irrespective of the outcome (who wins).
Patent Lawyers
Patent lawyers who are also the most vocal software patents proponents are now trying to lecture the world about the views of opponents of software patents. One of them says: “The loudest argument against software patents is not that software shouldn’t be patented because it is not innovative, but rather that patents are not needed because with software it is all about speed to market and the advantage that the so-called first mover will achieve. As the theory goes, all you need to do is get to market first and a tremendous advantage will be achieved by getting early adopters to use the software and integrate it into their lives, or businesses.”
Actually, this isn’t the argument I ever hear from opponents of software patents, not even the FFII. It’s easy to debunk or to refute an argument which was never made in the first place, like a straw man or a red herring.
Patent Profiteers
Going back to Patently-O, a maximalist of patents (watch who runs the site), in a series of recent posts [1, 2, 3] it wrote a lot about SCOTUS and the Constitution. If one actually follows the US Constitution, then one soon realises that those who wrote it would most likely oppose software patents. We covered this one particular aspect of the law several years back. The SCOTUS rulings seem to agree with our views on that, hence the Alice case.
“Wow,” wrote this one patent lawyer from Europe, the “US software patent invalidation rate [is] at 82,9% due to Alice abstract idea test!”
This one lawyer, Bastian Best, profits from patent maximalism and realises that software patents got too tough a business. He has just written a detailed post about it.
All sorts of patent lawyers, not just in Europe but also in Australia, have become interested in US patent law. One of them, Mr. Blows (real name), posts lots of analyses of US cases involving Alice [1, 2]. Blows says that the “US position on software patents has gone through a significant change in the last five or so years, from being broadly accepting to becoming a difficult jurisdiction. [...] What precipitated this? If the concurring opinion of Circuit Judge Mayer in ULTRAMERICIAL, INC. v HUKU, LLC 2010-1544 (Fe. Cir. 2014) is to given credit, then the blame rests squarely with vexatious litigants, particularly “patent trolls”. [...] Many believe however, that the legal framework (the Alice 2-step abstract idea test) that has been developed is a blunt tool that throws the baby out with the bathwater. It is a shame, and it would be desirable if more targeted approach could be found. [...] Determining if a computer implemented invention is patentable in the US can be difficult. This heavily cited decision is clearer than most, and shows how a routine implementation of an “abstract idea” may be found to be patent ineligible.”
We have been gratified to learn of cases since the middle of 2014 where software patents got squashed by citing Alice. There’s no sign of changing this and no foreseeable case at SCOTUS level that can reverse this.
Non-litigating Academics
We are big fans of Bessen and his colleagues or co-authors. We last mentioned him two months ago. Over the years Bessen wrote many papers and articles about software patents, patent trolls, and so on. Here he is quoted in “The Rise of Lawyer 2.0″ as follows: “James Bessen, a BU School of Law researcher, found a positive relationship between the degree of computerization in a particular job category and employment growth. A good example of this for lawyers is e-Discovery. It has created more document review work for lawyers. At the same time, it has also accelerated the disaggregation process and has ushered in the age of legal service providers.”
Patent lawyers think about patent lawyers. Bessen is not a patent lawyer but more of an economist. His academic page describes him as a professor who “studies the economics of innovation and patents. He has also been a successful innovator and CEO of a software company.”
Rather than listen to sites such as IAM (Intellectual Asset Management) more people out there should pay attention to the likes of Bessen. He has nothing to gain from bias.
Corporate/Wall Street Media
Of course it’s not just patent lawyers who want more patents everywhere. What’s with Forbes (the plutocrats’ rag) publishing so many pro-patents (and pro-software patents too) pieces as of late? Well, look who’s writing pieces such as this. To quote his own introduction: “I am the chairman and CEO of the intellectual property (IP) advisory and optimization firm Dominion Harbor Group, and have been named one of the world’s top intellectual property strategists by Intellectual Asset Management magazine.”
Intellectual Asset Management ‘magazine’ (IAM) is an EPO-funded propaganda site for patents. That explains his bias and patent maximalism, which IAM is known (or notorious) for.
The solution to this is twofold. First, expose the issues with the current ‘news’ sites that claim to be covering patents (a lot of them are funded by patent lawyers, who are considered subscribers and thus command the agenda/bias). On the other hand, waste no time trying to change corporate media. It won’t work. Make alternatives to it. Lead to a situation whereby corporate media dies (too expensive to maintain) and people go to sites such as Groklaw for information about patents.
IAM: A Case Apart
IAM is not an ordinary site. It’s a parallel universe. This, for example, is pro-patents propaganda titled “US start-up employment and sales growth rates boosted by patents, new research reveals” (‘research’ in scare quotes).
It has nothing to do with patents; they are doing fine, in some cases, IN SPITE of patents, not thanks to them. IAM is the voice of the occupiers in the patent world; the EPO-funded IAM ‘magazine’ is now crying for patent aggressors such as SEP trolls (similar to NPE trolls). Here is IAM defending the patent mafia Sisvel under the headline “German appeal court halts Sisvel injunction in key SEP litigation case”.
People who invalidate patents are “death squad” in the minds of IAM ‘magazine’ (writers there are people who call patents “assets”/”property”, not man-made monopolies on ideas).
IBM Glamour Over Patents
About a week ago Florian Müller linked to this article titled “If Patents Are So Valuable Why Does IBM’s Intellectual Property Revenue Continue To Decline”. This article too is from Forbes and it says: “While the value of patents isn’t calculated just by the revenue they generate, it is interesting to see how IBM is doing with this financial line item. Between 2008 and 2012 IBM’s patent portfolio generated between $1.1 and $1.2 billion per year. It has fallen each year since then to $742 million in 2014 and could fall again in 2015 to under $700 million.”
Another noteworthy article which mentioned IBM (there were plenty, but most just mentioned the number of US patents granted to IBM) was titled “2015 “Most patent disputes in history”, IBM most patents again”. Citing UnifiedPatents, the article said:
A wave of patent reports has been doing the rounds at the start of this year, as legal experts from a range of industries attempt to summarize the sometimes complex field – from the myriad of patent disputes to the countless patents granted or declined.
A patent dispute report from UnifiedPatents, which observes filings with both the US Patent and Trademark Office and disputes in federal district courts, found that overall patent disputes totaled 5,500 in 2015 – an increase of 13% compared to the previous year, and the highest ever recorded.
By industry, UnifiedPatents reported that the majority of patent litigation in 2015 involved high-tech patents (patents covering technologies related to computing or consumer electronics) that were asserted against high-tech and non-tech companies. Of all the high-tech litigation cases of 2015, a mammoth 87.6% involved non-practicing entities (NPEs), otherwise known as patent trolls.
We wrote a lot of articles about this before, including a few articles about the latest figures from IBM and from UnifiedPatents. Proponents of software patents are doing a lot of damage to the USPTO because it now tops the lowest of leagues (lowest patent quality) by doubling the number of patents granted. This isn’t innovation, it’s dilution and lowering of a bar. “Small guy”/”poor inventor” IBM also helps debunk the “small guy”/”poor inventor” myth. Who is this system really intended to serve? Articles such as “IBM keeps top spot as US patent leader, study says” and “IBM tops patent list for 23rd time” remind us that it’s not a new problem.
Patent Trolls Love It
“88% Patent Troll rate,” claimed this person earlier this month, sharing the image below.
Does that help support the “small guy”/”poor inventor” myth? No, it serves to show that the only “small” entity which benefits is a parasite, or a troll. “Patent Trolls Laughed All the Way to the Bank Last Year,” says this recent headline from Spectator. To quote some key bits: “Lost in the haze of New Year’s Resolutions and wall-to-wall election coverage, a very disturbing fact for America’s inventors emerged early this month: The number of lawsuits filed by non-practicing entities (NPEs), more properly known as “patent trolls,” increased by 25 percent in 2015. As a quick reminder for those who might not have followed the issue yet, patent trolls are companies that exist solely to extort money for (often comically vague and totally unused) patents, at the expense of actual inventors and small businesses.
“Indeed, patent abuse in general had a pretty strong year in 2015, with its poster boy probably being Martin Shkreli, the infamously extortionate hedge fund manager who jacked up the price of the drug Daraprim by over 5000 percent simply because he owned the (expired) patent for it. Shkreli, fortunately, was quickly outcompeted by generic drug manufacturers, who took advantage of the patent’s expiration, but not everyone was so easily saved from patent profiteers.”
A short while ago even the patent lawyers from IP Kat found themselves having to admit that there’s a problem here . “Much ado about the patent troll problem,” one section said. “Earlier this month,” wrote their biggest proponent of software patents (‘Amerikat’), “an analysis published by RPX Corp reported that non-practicing entities (NPEs) filed over 3,600 patent cases in the US in 2015. This was an increase of over 700 cases from the previous year. With NPEs being the most active in the high tech sector, it is no surprise that their 2015 top target was Samsung with 71 cases brought against it by NPEs. AT&T (50), HP (43), Apple (40) and Dell (40) were not too far behind.”
There’s no decent way to justify this or characterise this as desirable.
ACSLaw also weighed in very recently. It asked: “Why are so many patent cases filed in the Eastern District of Texas? It’s not for the barbecue. And it’s not because the remote, largely rural district is a technology hub. Rather, it’s because local rules and practices make the district attractive to patent plaintiffs. More specifically, local practices make the district very attractive to companies – known as patent trolls – whose sole business model is to buy patents and sue.”
People from FFII haven’t been saying much about patent trolls, which basically stole the thunder of the debate about software patents (that patent trolls typically use). “Does not change much on the inability of independent developers to defend themselves,” ranted the FFII’s President the other week, “then focus on curing the disease, not the symptoms like it is proposed.” (see context here)
“EDTX [Eastern District of Texas] had 95% Patent Troll rate overall last year,” one account is quoted as saying. “89% of Patent Trolls Target Tech,” this account added, citing Figure 10 from some unknown paper:
Locked behind a paywall is this article about the known issue in Texas. It says:
The United States has 94 federal judicial districts, but in 2015, almost half of all new patent cases were filed in just one—the Eastern District of Texas.
Texas is also mentioned in this analysis about change of patent venue (to courts more favourable to the plaintiff, usually the trolls). “In the pending mandamus action of TC Heartland,” it says, “the merits panel has taken one step forward by ordering oral arguments – set for March 11, 2016. Although the order was a per curiam decision by the Merits Panel, it does not, on its face, reveal the identity of the three judge panel. The petition asks the Federal Circuit to change its rule on patent venue and personal jurisdiction. If the petitioner here wins, we could see a dramatic shift in the geographic distribution of patent cases. In other words, it would become much more difficult to bring an infringement action in the ongoing hot-spot of the Eastern District of Texas.”
Texas, the patent trolls’ haven, may lose a lot of business if the rules do change. Expect Texas to fight to keep this kind of wild west of patent litigation.
It’s not always trolls that sue over patents or even more specifically software patents. Here is a recent example that made the news:
Two major providers of police body-worn cameras have become embroiled in a patent battle.
Kansas-based Digital Ally sued Arizona-based Taser International late last week. The company accused Taser’s Axon Flex body cameras of infringing its US Patent No. 8,781,292. The patent describes linking together a body-worn camera, a vehicle-based camera, and a “managing apparatus” that communicate with each other.
IDG recently published the article “What’s next for patent trolls, and can the Supreme Court stop them?”
Well, in order to stop them one needs to check who gives them (or funnels to them) patents in the first place and what for.
It seems like a case of some obscure LLC versus Cisco may soon reach the Supreme Court. Remember that Patent Troll Tracker was a Cisco lawyer at the time. Cisco had suffered a lot from patent trolls.
Troll Feeders
It is worth noting that many trolls, including those that act as Microsoft’s satellites, play a role for large companies. They engage in proxy wars. Blackberry, as we warned in many articles in the past, is feeding (or prepares to feed) a lot of patent parasites for money. This is sad news, especially in light of Blackberry’s adoption of Android, but it back in September that “the company’s CEO John Chen talked about monetisation of its 44,000-strong patent portfolio as being “an important aspect of our turnaround”.”
We recently mentioned some patent trolls that effectively act as Microsoft’s henchmen. We mentioned Finjan in the distant past and recently revisited it. Watch this article which says: “Finjan Holdings, Inc. (NASDAQ: FNJN), a cybersecurity company, [subsidiary Finjan, Inc.] today announced that the Patent Trial and Appeal Board (PTAB) for the United States Patent & Trademark Office (USPTO) denied six of Symantec Corporations petitions for Inter Partes Review (IPR) of Finjan patents with two serial petitions denied on 7,756,996 (’996 Patent), and further denials on Finjan’s patents 8,141,154 (’154 Patent), 8,015,182 (’182 Patent), 7,930,299 (’299 Patent) and 7,757,289 (’289 Patent).”
Finjan is rapidly becoming a medium-side patent troll, smaller than entities such as Acacia or Intellectual Ventures (Microsoft-connected). The latter two entities have the advantage of being effectively immune from litigation because they have no products of their own, unlike Microsoft or its friends at Finjan.
A new article by Joe Mullin, titled “Wait… we sued who?! Patent troll drops case one day after Newegg’s lawyer calls”, shows that in some rare cases patent trolls can actually be deterred by something, despite having no products to be sued over. To quote Mullin: “A shell company that sued dozens of computer peripheral makers has quickly dropped Newegg house brand Rosewill from its list of defendants. The motion to dismiss, filed yesterday, comes just days after Newegg’s lawyers filed notices of their appearance in the case.
“Minero Digital LLC dismissed its case against Rosewill one day after Newegg Chief Legal Officer Lee Cheng authorized his outside lawyer to try to settle the case in exchange for a “nominal donation to charity.” During that conversation (the attorneys’ first discussion about the case), Newegg’s outside counsel said that although the proposed agreement wouldn’t pay Minero anything, it was likely to be Newegg’s best and final offer. He suggested Minero search the Internet for news articles about Newegg’s policies on settling “patent troll” type cases. (The short version: Newegg doesn’t pay patent trolls.)”
Software Patents
Patent maximalist Dennis Crouch wrote the other day about Alice. Crouch gives an overview of SCOTUS patent cases, which is handy, among other things, but this time he said that a “patent is not permitted to effectively claim an abstract idea. In Mayo/Alice, the Supreme Court outlined a two-step process for determining whether this exception applies to Section 101’s otherwise broad eligibility principles: (1) is the claim at issue directed to a patent-ineligible concept and (2) if so, does the claim include an “inventive concept … sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.””
Techrights was always (and still is) predominantly opposed to software patents, not patents as a whole. We hope that when the US gives a deathblow to software patents the rest of the world will too. This includes the out-of-control EPO. █
Permalink
Send this to a friend
Posted in Europe, Patents at 1:03 pm by Dr. Roy Schestowitz
Battistelli’s latest dangerous cocktail, after vainly disregarding court orders from The Hague
Summary: Latest news about the EPO’s witch-hunt against various people whose punishment seems strategic, intended to harm coordination and scare everyone, probably for complete elimination of dissent and criticism
EVERY now and then we hear from all sorts of people about all sorts of other people who work for the EPO. Given the (mis)use of gags (or orders thereof), which are sparingly being invoked to limit the flow of information, we sometimes need to verify or double-check before reporting anything. Transparency is currently the biggest enemy of the thugs who manage the EPO. We hope that readers do recognise this by now. What Battistelli and his PR team later say — after heavy sanctions and/or dismissals — is a dangerous mix (or cocktail) of lies and character assassinations, to twist Battistelli's own words a little.
According to information we recently received, a lot is already happening, “but there is still yet more to come.”
“I just got the short feedback about the latest assembly at The Hague,” one reader told us. “That’s all I have,” the reader said, “there is no context about authorship of provenance.”
The feedback said:
Very good participation: Auditorium packed! Never as full as this one. 800 at least.
But very sad atmosphere. Saddest ever. Some call for production reduction (applause). Reminder about the next week demo.
Financial support also and urgently for LP who may not receive his salary in January.
Related to the assembly which was covered here before, there will soon be a protest.
“LP probably stands for Laurent Prunier,” a reader told us over a week ago. “I didn’t know he was formally suspended.”
We first wrote about it (the suspension of Prunier) about a week ago, after learning about it from several separate sources. There are more suspended people who are not publicly known. The EPO uses gag orders in an effort to keep all this union-busting chaos silent, secret.
“After Munich,” said a new announcement today, “it is now the turn of The Hague’s staff representation to be “disposed of” by Battistelli’s regime.”
Here is the content of the whole thing:
Witch hunting intensifies in The Hague
Dear colleagues,
After Munich, it is now the turn of The Hague’s staff representation to be “disposed of” by Battistelli’s regime.
Jesús Areso has been put under tremendous pressure by the administration — again last week — concerning issues about which he is forbidden to talk. He felt unwell on Friday, and yesterday he collapsed in the canteen. He was brought by ambulance to a hospital in Delft. This is his third collapse in a relatively short period of time.
Laurent Prunier is on sick leave, duly certified by his treating medical specialist. The Office refuses to accept the fact and has declared him as being on unauthorised absence as of 04 January 2016 = no remuneration from 04 January 2016 on. This is on top of being at the receiving end of “actions” about which he, too, is forbidden to talk.
Who will be next ?
SHOW YOUR SOLIDARITY
ATTEND THE DEMONSTRATION
ON THURSDAY 28 JANUARY LUNCH TIME
There may be reprieve on the way, based on various actions we are aware of that happen behind the scenes and we have not yet reported on (for strategic and diplomatic reasons). Public display of outrage does get noticed (see this article from earlier today) and contacting one's delegates can contribute towards a solution. █
Permalink
Send this to a friend
Posted in Europe, Patents at 7:43 am by Dr. Roy Schestowitz
Executing large corporations' (not even European) wills and whims in Brussels
Summary: The immunity-waving European Patent Office (which is unwilling to waive its right to remain untouchable) is meddling and interfering with European politics, in the interest of monies/entities that are against Europe’s
Lots of political stuff is going on at The Hague (Netherlands), in France and in the UK at the moment, regarding the EPO’s abuses. Is Battistelli in trouble? Political actions may not be effective when the EPO enjoys effective immunity. The political system can barely touch the EPO, but the EPO sure is touching the political system and actively lobbies, e.g. for UPC.
According to a source of ours, “this just came in. It is an internal job posting.
“The Sovereign Republic of Eponia is looking for a plenipotentiary delegate for its Brussels colony, whose task is to pursue Her interests and implement Her policies…
“Can they possibly find that rare person combining all the desired qualities at the EPO in the next fortnight? Perhaps in the entourage of the Sun-King…
“I didn’t know that the EPO or EPOrg had political views, or was allowed to have her own. Who formulates these? The President? The AC? DG5? The Member states overseeing the AC? But if the same member states also sit at the EU, are they then lobbying themselves?
“I wondered what kind of work the Brussels delegate is doing, and found this dating back from 2012 [PDF].
The original file is unusable, and text can neither be searched nor copied. It’s apparently not copy protection-inflicted, just brain-damaged software, so we are hereby including an OCR version [PDF].
“The following panel from the schedule gives an idea of what the Brussels EPO bureau chief is involved in,” our source told us. “I have no idea what Mr. Gal might have said at this occasion.”
10h45 Enforcement measures for intellectual property rights – what is fair and proportionate?
Moderator: Claude COSTECHAREYRE,
1. Is copyright enforcement obstinate or obsolete?
Subtitle: Some concepts: global licence, graduated response, abuses, damages, injunctive measures, sanctions, technological protection measures, commercial scale
[...]
2. More than copyright: patents on medicines, software, trademarks, border measures – what should change?
- Javier De la Cueva, Lawyer, Madrid
- Jean-Luc Gal, Head of Brussels Bureau, European Patent Office
Was the EPO batting — like hired guns (lobbyists) — for Hollywood and Mickey Mouse? It’s hard to tell, but it’s inappropriate for the EPO to be involved in this way. It is currently lobbying regarding the UPC.
Here is what the EPO now wants in Brussels:
Vacancy notice
Head of Brussels Bureau (5.0.2) (3 years, extendable)
Status: Open Category: Temporary
Area: DG 5 – 5.0.2
Job group: Job group 4
Career path: Managerial
Place of employment: Brussels
Code: TRF/5941
Publication date: 18.01.2016
Closing date: 01.02.2016
Contact: Anne Arca-van Almsick
Permanent and contract employees wishing to be considered for this vacancy are invited to apply online.
It is intended to fill this vacancy by transfer under Article 4(1), first and second indents, and Circular 289.
Please note that only permanent and contract employees in the same job group as the advertised vacancy are eligible to apply.
It is the mission of the EPO’s Brussels Bureau to co-ordinate and enhance relations between the EPO and the European institutions, in support of the EPO’s overall mission and core business and in order to strengthen European stakeholders’ understanding of the EPO’s role as one of the world’s leading patent granting authorities.
Under his supervision, the Vice-President DG5 is now looking for a Head of the Brussels Bureau accountable for developing relationships with key players at the European institutions such as the European Parliament, the EU Commission and the EU Council of Ministers and its working groups and delegations and European stakeholders from business and non-governmental organisations (NGOs), and – equally importantly – serving as the EPO’s eyes and ears in Brussels.
Main duties
• Conveying the EPO’s intellectual-property views and interests to opinion leaders, including representatives of the EU institutions such as the European Parliament, the EU Commission and the EU Council of Ministers and its working groups and delegations
• Maintaining and enhancing the EPO’s network of contacts with European stakeholders from business and relevant NGOs
• Producing studies, analyses and proposals for the EPO’s position concerning the European institutions’ activities which affect the European Patent Organisation
• Liaising with other EPO departments in their dealings with the European institutions
• Making the EPO’s political views known to opinion leaders
• Maintaining day-to-day contacts with the network
• Taking part in and reporting on meetings (formal and informal), conferences and other EU events
• Briefing EPO headquarters on developments likely to affect the work of the Organisation
• Reporting and advising on European policy and political initiatives affecting the EPO
• Preparing conferences and other events in co-operation with other EPO departments
• Interacting with the different EPO directorates-general
• Managing and reviewing – as line manager and reporting officer – the performance of the individual staff member and the overall performance of the team according to the team objectives and individual objectives of team members as well as priorities set
• Communicating management’s operational directions and priorities to the team
• Guiding and supporting the professional and personal development of the individual team members
The ideal candidate should have:
Excellent practical knowledge of the structure and political functions of major European organisations, e.g. the Eu
• Years of proven advocacy experience in Brussels
• Experience in people management
• Excellent team-working and interpersonal skills
• Experience in change management and organisational development
• Ability to work autonomously
• An existing, reliable and workable network of contacts
• Good political knowledge of patent issues and the EPO
• Highly developed communication skills (also with the press) and the ability to represent the EPO effectively at various levels
• Ability to get complex issues across clearly and comprehensibly
• Highly developed ability to react and report quickly
Process and timeline
The successful candidate will be selected on the basis of qualifications and relevant experience, supplemented as appropriate by interviews and/or tests.
It is intended to hold the interviews on 01 March 2016 in Munich.
The successful candidate will be appointed for an initial period of 3 years, which may then be extended by further fixed periods. The appointment will be subject to a probationary period of six months.
Since this was an internal posting, maybe they already know who will get this position/job. Maybe it was ‘custom-made’ for that person (recall the Bergot scandal [1, 2, 3, 4]). █
Permalink
Send this to a friend
Posted in Europe, Patents at 6:55 am by Dr. Roy Schestowitz
The European Patent Office (EPO) cannot pretend to be law-abiding or deserving any respect anymore
Summary: “Related to EPO,” a source told us, crushing of fundamental rights now deemed a serious offense, based on a new report from France
“Here is a link to a recent publication in the French newspaper “Le Monde” which is of a big interest in the present context. It is all about a report that the French government ordered to the former Minister of Justice, Mr Robert Badinter. I haven’t read Badinter’s report yet but I was appealed by the title: « Le respect des droits fondamentaux, première exigence du droit du travail » which translates approximately into “The respect of fundamental rights, first requirement of labour law”.
“I could summarise the situation by stating tat Dr. Elisabeth Hardon and Mr. Robert Badinter are both fighting for “fundamental rights” with respect to labour law.
“Here is another link on the same subject. The more I dig on this subject, the more it is relevant to the EPO. Last but not least: the Badinter report [PDF].
“Here is the translation of the text [...] It is amazing: Mr Robert Badinter should really talk to Benoit Battistelli to teach him good habits.”
Labour law: the Badinter report defines a foundation of fundamentals
January the 25th, 2016
The report of the committee chaired by Robert Badinter defining the fundamental principles that must be established in labour legislation was handed over to the Prime Minister on January 25th, 2016. For the committee, the first requirement of labour law is “to ensure working woman and man, employees and all those who participate in wealth creation process in a company, the respect for their fundamental rights, including their dignity. ”
The report defines 61 basic principles of labour law in eight main areas:
Freedom and rights at work. “Fundamental freedoms and human rights are guaranteed in any working relationship.” Among the stated principles are equality between men and women, racism, respect for privacy, prohibition of harassment, etc.
Training, implementation and termination of the employment contract. “The employment contract of indefinite duration.” Are also defined: the freedom of choice of the professional activity, maternity rights, the right to extended vocational training, the need for real and serious grounds for dismissal, etc.
Remuneration. “All employees are entitled to a remuneration ensuring decent living conditions. A minimum wage is set by law.”
Work time. “The normal working hours are fixed by law.” The report states that any transgression of the legal working hours entitles to a compensation. The principle remains the established weekly rest on Sunday, derogations may be authorized by law. Also part of the essential rights: the daily rest, supervision of night work, paid holidays.
Health and security at work. “The employer must ensure the safety and protect the health of employees in all areas related to work.” The report recognizes the right of withdrawal for employees who consider themselves in situations that present a serious and imminent danger. Employees need access to a independent occupational health service.
Freedoms and collective rights. The report postulates freedom of organisation and freedom for employees to join the union of their choice. He recalls the right of every employee to defend its interests by strike. The exercise of the right to strike may justify neither dismissal nor a sanction.
Collective bargaining and social dialogue. “Any labour law reform project is subject to prior consultation with the social partners.”
Administrative control and dispute resolution. “Labour inspection supervises the application of labor law under conditions protecting its members from undue external pressure.” Work-related disputes are brought before a specialized court, the employees cannot be punished for bringing the matter to court or for testifying.
The minister responsible for labour is expected to present in early March, a bill to reform the labor law. The principles set out by the Badinter Committee could be the preamble.
Keywords: Work, labour
The EPO is not only mistreating staff representatives, whom it is constantly trying to crush. Just recall how the EPO management (mis)treats the sick workers.
IP Kat comments got derailed by one single commenter (maybe another pro-EPO troll), repeatedly portraying EPO staff that’s protesting as spoiled and selfish, echoing the common PR tactic that we found coming out of EPO management every time mainstream media covered these issues. As we can safely skip much of that (the provocation and comments feeding the provocateur) — because it would be unwise and counterproductive to do rebuttals again — let’s look at what new information we can find in the comments. Right now, for instance, among the latest comments (not all) we have what could be related to the upcoming strike:
sick people will declared “not sick”;
interesting question :
if somebody “not sick” causes an accident (e.g. falls down an escalator) and injures/kills somebody else, because of the prescribed medication he had to take, will BB take the blame ?
will the EPO pay the damages?
One response to that says:
The history of labour disputes is full of examples, such as the “blue flu”, of non-cooperation of labour with management. But such history is all irrelevant to life inside the EPO, unless it concerns a labour dispute in a land where there are no courts. A land in which there is just a President who is investigator, prosecutor, judge, court of appeal and the sentencing authority, all rolled into one malevolent all-powerful being, an alien entity who looks down on his subjects from a satellite orbiting above them.
Recall the example of Admiral Byng, the British Admiral who in the 18th century was executed on his own quarter deck, in front of all the officers of the Fleet. Did he forfeit his pension rights? No doubt he did too!
Why did the Naval Authority do that to him? Why “pour encouragez les autres” of course. BB probably knows the story and has learnt something from it.
Now who at the EPO volunteers to be the next Admiral Byng?
Regarding that Admiral, another person wrote:
BB may have read his Voltaire.
But perhaps he should also have studied Blyng’s epitaph:
To the perpetual Disgrace
of PUBLICK JUSTICE
The Honble. JOHN BYNG Esqr
Admiral of the Blue
Fell a MARTYR to
POLITICAL PERSECUTION
March 14th in the year 1757 when
BRAVERY and LOYALTY
were Insufficient Securities
For the
Life and Honour
of a
NAVAL OFFICER
Alluding to the “Pompidou/Brimelow era”, one person wrote:
To answer the question about the applicable health and safety law: The applicable law is that of the host state, see article 16 (I think) of the PPI which imposes on the EPO the duty to co-operate with the host authorities for the observance of this law. However, the EPO has consistently defied this provision, not just in the notorious case of the suicide on office premises, but also earlier in The Hague, when the Dutch Labour Inspectorate sent a letter politely requesting a discussion as to how such co-operation could be arranged, only to be firmly rebuffed.
After a long series of negotiations between the Staff Committee and the management a comprehensive health policy for the EPO was agreed, which among other things, looked at the applicable legal framework. Part of the agreement was that the President would ask the AC for permission to co-operate with the national authorities as laid down in the PP, not that any such permission was needed. The request was never made, despite many reminders from the Staff Committee.
It may interest readers to know that the health policy also adopted a comprehensive health policy based on best practice which included the prevention of occupational illness, reintegration of sick staff, fair provisions for the verification of sick leave, the settlement of disputes by a panel of three doctors, the confidentiality of medical information, etc., etc. All this took place in the Pompidou/Brimelow era and the policy was patchily applied, due to management hostility. Nevertheless, it covered every aspect of the subject, and contained a provision for periodic review, which could have been used to remedy any defects found in practice. It was a model of a negotiated approach to a thorny problem in which both sides strove to solve each others problems.
Of course, all this was all immediately swept away by Battistelli. Occupational disease no longer exists, nor does confidentiality of medical information. The head of the health department is now a lay person, who reads confidential medical files. Battistelli or one of his minions will decide if you are sick or well, over-ruling qualified medical advice, and will decide on arbitrary grounds if and how much sick pay you receive. If you have a long-term illness you will face a form of house arrest for up to 10 years, before you may be allowed to return to your home country.
The speed and ferocity with which the health policy was dismantled shows just how much BB knew he had to fear from its correct application.
To repeat the above, “Battistelli or one of his minions will decide if you are sick or well” (which in itself is absurd). Is this how the EPO treats highly-qualified patent examiners? If so, what does that say about the EPO in relation to the Badinter Report? █
Permalink
Send this to a friend
Posted in Europe, Patents at 6:21 am by Dr. Roy Schestowitz
Summary: SUEPO shows and translates a letter sent from Philip Cordery (above) to the International Labour Organisation (I.L.O.) bemoaning the abuses by the management and calling for action
“French MP Philip Cordery (Deputy for French Citizens of Benelux),” according to this comment, “issued a post (dated 9 January 2016) in which he indicates that he has sent a letter (dated 14 December 2015) to Guy Rider, Director General of the International Labour Organisation (ILO). Translations are available in English, German and Dutch.”
This links to what SUEPO put in its public page yesterday, regarding a matter that we covered before (also in Spanish), even more than once (in English or in Spanish). It also quotes that in full (the words above are SUEPO’s), except the PDF which correctly states that the I.L.O. is massively overwhelmed by complaints about the EPO's management:
Philip Cordery
Deputy for French Citizens of Benelux
Secretary of the Commission of
European Affairs
Member of the Commission of Social
Affairs
President of the study group for
cross-border zones and workers
Paris, 14 December 2015
To the Director General,
Dear Guy,
As you are aware, the social climate within the European Patent Office (EPO) has deteriorated in the extreme. Since my last letter, however, matters have come to a head. Essentially, the repression has considerably hardened against the representatives of the Staff Union of the European Patent Office (SUEPO). A number of them have been suspended from office, while others have been the object of aggressive investigations and also risk dismissal, for entirely fallacious reasons.
While the main protagonists who are the victims of the campaign of defamation all have in common the responsibilities they have assumed within SUEPO (the former or present President, Secretary, Treasurer, active elected officers), all of the personnel of the organization remain subject to intense pressure. The management of the personnel being imposed by the management and the human resources elements of the EPO, based on fear, isolation, and repression, must cease. This is an issue of the physical and mental health of a considerable number of people whose welfare is our concern.
The social situation is well known to all, as attested by the numerous press articles, political actions, or administrative recommendations. In their report last November, the International Labour Office of your organization exposed the tensions within the EPO, citing the very large number of applications lodged by EPO functionaries with the Tribunal (56% of the complaints recorded by the Tribunal in 2015), even threatening to compromise the activity of the Tribunal itself.
In the light of this, and as indicated in the report, it would be particularly appropriate to engage the EPO in discussion in order to ameliorate the present social climate.
I am at your disposal to exchange views with you on these matters.
Yours faithfully and
Philip Cordery
One interesting comment that we found last night said: “Apart from the intervention of James Carver (see youtube), I’ve not seen coverage of the EPO in UK media. No interest? Not even in the run-up to the referendum? Not even in a referendum where a few hundred votes might make a drastic difference? What will a random UK voter think of the current EPO administration, and the way it handles its workforce? And what’s the odds that, given his exceptional achievements at the EPO, BB is rewarded with something much bigger, like, next president of the European Commission? Would the Brits oppose? Would anyone oppose?”
IP Kat has all sorts of discussions over there about UPC, but it’s a little bit tilted in favour of patent lawyers because it’s many of them who are interested in such articles and comment on them.
In relation to that last comment, one person wrote: “How do the British feel that a EU referendum is coming, but the government is making an exit more difficult by signing the UPC? But the media is rather silent everywhere. Süddeutsche has exchanged the reporter covering the EPO, and the new lady seems to be under pressure to produce articles, and seems to have less time for investigation. But like a friend said: how can we generate public interest when we cannot even catch the interest of our users, more specifically, the representatives? He said that when there still have been strikes.”
“The UPC would place even more power at the hands of people who have shown utter disregard for human rights and the Rule of Law.”There is Insufficient reporting on this issue, except from patent-centric sites, by and for patent lawyers. One of them wrote: “Finland has ratified the Unified Patent Court (UPC) Agreement, meaning there are now nine total countries involved with the new regime.”
“EFFI should file a Constitutional Complaint in Finland against the UPC, in memoriam of Ville Oksanen’s work,” the President of the FFII wrote, linking to a writeup more than a decade old (also having cited the above article).
The UPC would place even more power at the hands of people who have shown utter disregard for human rights and the Rule of Law. Until things are resolved inside the EPO it would make a lot of sense to put UPC on the ice. █
Permalink
Send this to a friend
Posted in Europe, Patents at 5:38 am by Dr. Roy Schestowitz
Original/English
Publicado en Europe, Patents at 5:09 am por el Dr. Roy Schestowitz
El fenómeno del nido de avispas no entendido claramente por la gerencia de OEP
Sumario: A pesar de los despidos y severos castigos (aplicados de sobremanera por Pinocho Battistelli a pesar del consejo del comite disciplinario), la unión de empleados de la OEP continúa mostrando señales de fuerza y tomarán futuras acciones (algunas más efectivas que las de hasta ahora, i. e. huelgas)
Lo que la gerencia de la OEP parece no entender, simplemente es su tardío entendimiento de efecto Streisand, es que lo más duro que aplastes a las uniones, lo más combatiba y/o ´agresivas´ (en un efecto de reacción) sus miembros se convierten y peor la situación se vuelve para la gerencia de la OEP. Están pinchando un nido de avispas.
Después de atacar repetidamente a las uniones, terminando en despidos, algunos empleados decidieron ir a la huelga. El dolor compartido, mas aún ayuda a apoyar a los despedidos. Los sobre estresádos empleados ven a sus representantes como mártires, o como personas que no pueden ser dejados a perecer, ayudando a la gerencia de la OEP a usarlos de ejemplo (para asustar a otros).
Ayuda financiera esta siendo ofrecida a los despedidos lideres de la unión. Solidaridad con sus compañeros y sus familias. Para citar lo visto, ¨respondiendo a la materia más urgente, muchas iniciativas han comenzado en varios lados. Sin embargo a la luz de la compleja situación en Holanda y Alemania, diferentes modelos son investigados. Se asume que los empleados serán informados ni bien algo concreto se sugiera. Aquí esta lo que la SUEPO Munich escribe en la materia: ¨De los cinco (!) representantes que han sido dura e inapropiadamente sancionados por Pinocho Battistelli, el Sr. Ion Brumme lo ha sido más duramente. Necesitará ayuda. Estamos trabajando en esto. Estamos estudiando como afrontar esto del punto de vista legal y taxativo.¨
También hay indicaciones que a pesar del severo castigo no evitó a la Srta. Weaver de estar envuelta en actividades sindicales. ¨En una nota personal,¨ dice el correspondente, ¨después de meses de ausencia, hoy Malika Weaver estuvo en la oficina y de nuevo activa en al CSC. Mientras las marcas de su calvario todavía están visibles, fue muy bueno verla de nuevo. Sinceramente esperamos que muy pronto Ion Brumme y Els Hardon puedan ser vistos de nuevo en las premisas de la OEP. Mientras tanto estamos haciendo lo imposible para hacerlo realidad.¨
Brumme no iba a ser removido de su cargo, pero el desgraciado de Battistelli ignorando al comite disciplinario lo hizo de todas maneres. ¿No piensa este desgraciado que estas personas son padres/madres de familia con niños que mantener? El Rey Sol no escucha a nadie; Battistelli lidera una autocracia disfrazada de algo más. Esto en sí mismo es una causa para la huelga. Basado en este nuevo comentario: ¨No puedo ver donde los examinadores estén HACIENDO algo como señal de protesta. Obviamente, desmostrar en público no es tan efectivo como lo esperado, la gente ¨afuera¨ de la OEP no son tan sensitivos cuando empleados ganando 10k no son felices. Si la AC sólo puede ser influenciada por resultados, bueno, lógicamente, sólo queda una cosa: producir menos. Me pregunto cuándo se darán cuenta de ello. Por supuesto, esto significaría que ellos diga adiós a sus bonos..¨
Hace meses nos quejamos como las examinaciones en la OEP eran hechas en apuro (e.g. trabajo descuidado [http://techrights.org/2015/10/11/closer-contact-with-major-applicants-leaked/]) en order de complir con objetivos. Bueno como este comentario lo pone, ¨todos son presionados para producir por lo menos 10% más que el promedio. De lo contrario eres amenazado con… preveo un quiebre.
¨Aparte de degradar el trabajo, otras acciones industriales son consideradas violatorias a tu contrato y llevarán a medidas disciplinarias. ¨Anda despacio¨ (produce menos que el promedio) es considerado garantía de despido ahora. ¨Revisar medidas aplicables¨, ¨ ir por el manual¨ y otras acciones de calidad donde te tomas el tiempo de revisar si sobremiraste o equivocasee en algo de acuerdo a las guias de procedimiento no són acciones industriales permitidas. Junto con el ajustado presupuesto de entrenamiento, nosotros los examinadores no tenemos oportunidad de leer cuales son las cambiadas regulaciones. Excepto en nuestro tiempo privado. Si, nos enfrentamos el despido por que lo quieres hacer bien la primera vez no es señal de confianza.¨
Un comentario dice: ¨de nuevo este año apróximadament 50 cartas de advertencia for bajo rendimiento serán dadas o un cupon por una rígiida sesión de acoso institucional… lo que asegura alguna clientela para el departamento de resolución de confictos del recursos humanos.
¨Producir menos es el camino al despido seguro en una organización conducida por la productividad¨, dice otro comentario. ¨Serenidad temprana de Busqueda es tal éxito que muchos directorados comenzaron a trabajar buscando documentos de prioridad grupo 4 y agarrar el log de examinacion para otorgar/rechazar procedimientos que no vienen de tedios casos de jurados de leyes, pero por en demanda, casi a tiempo requisitos de eficiencia. Aquellos serán implementados preferiblemente por examinadores por contrato que pueden ser desechados en una manera más flexible y legalmente sólida, por lo cual se reducen drásticamente las emisiones de carbono. Todas estas mejoras están viniendo a no costo al usuario. Revisen sus paracaídas caballeros. Alcanzaremos nuestra altitud de salto pronto. Y la luz se convirtó verde..¨
Se esta haciendo más fácil ver ahora por que muchos trabajadores ven la necesidad de una reforma, y que estan voluntariamente yendo a protestar, e incluso a huelga. Un nuevo comentario esta mañana dice:
El problema es que la experiencia que tu ganas como examinador de la OEP es de uso limitado fuera de ella. Una vez que has estado allí por una década o más, estas atascado allí de por vida. No descubres esto hasta que tu comienzas a aplicar por trabajos. Entonces te das cuenta que tendrás que tomar un real corte en tu salario del 50% por lo menos si realmentes quieres salirte. He estado allí, así que se de lo que hablo.
Esto es por que pienso que Battistelli es tan cruel y vengativo. El basicamente te tiene agarrado de las bolas y lo sabe. En ausencia de freno por el Consejo Administrativo, puede aplástartelas ta fuerte como el quiera, y tu bailarás obediente a su ritmo.
Hace uno años atrás todavía recomendaría el trabajo de examinador de la OEP como responsable e intelectualmente satisfactorio, con la excepción de lo difícil de regresar al mundo real. Estos días, urgiría a cualquier candidato prospectivo, pensar cuidadosamente de verdad antes de vender su alma a esta organización.
Una persona entonces pregunta: ¨¿Qué tal que cada uno se reporte enfermo? En estas circustancias creo que la mayoría de doctores apoyarían tener que trabajar bajo tal presión insoportable es enfermante y causa de extenuación. Será interesante ver como la situacion deviene si BB declara que el enfermo no es enfermo, en contra de los consejos del doctor. Lo cual bajo las nuevas reglas pueda hacerlo increíblemente.¨
Si la OEP llegara a entender que aplastar uniones les causa mas daño a ellos mismos, talvez desistan de hacerlo. █
Permalink
Send this to a friend
Content is available under CC-BY-SA