Court finds 5G iPhone/iPad sales ban in Colombia constitutional: Ericsson's preliminary injunction over 5G standard-essential patent remains in effect, Apple merely gets clarification

A second attempt by Apple to overturn a 5G iPhone and iPad sales ban in Colombia has just failed as a Colombian court denied a petition by Apple, but the iPhone maker hasn't exhausted all procedural options yet.

The first failed attempt was an emergency motion that Apple had brought with the United States District Court for the Eastern District of Texas. The idea was to hold Ericsson responsible in the U.S. for its enforcement of a Colombian patent. On July 28, that motion was denied, with the sole exception of Apple being authorized to provide to its Colombian counsel some documents obtained in the U.s. discovery process, but not even the one Apple was most interested in sharing (an Ericsson-Samsung license agreement). Judge Rodney Gilstrap furthermore warned Apple of sanctions should another such misuse of court rules (filing an emergency motion without there being the kind of emergency for which it is designed) occur.

In parallel, Apple brought a "tutela" in Colombia's capital. A tutela is a kind of petition designed to immediately stop any violations of a party's fundamental rights. Apple even invoked Art. 8 of the famous Universal Declaration of Human Rights.

The Tribunal Superior de Bogotá (Superior Court of Bogotá) has just published its decision, which was authored by Judge Jorge Eliécer Moya Vargas and furthermore signed by Judges Oscar Humberto Ramírez Cardona and Jorge Hernán Vargas Rincón. The net effect is that

• there was no procedural irregularity or other violation of Apple's constitutional rights by the court that ordered the preliminary injunction or Ericsson (or its Colombian outside counsel, OlarteMoure's Carlos R. Olarte), so the injunction remains in force, and

• the only part of Apple's motion that succeeded is that the Civil Court No. 43 is ordered to provide within five days some clarification on the scope of the injunction that Apple had requested.

Basically, Apple is referred to the regulator appellate process, but can't obtain emergency relief on the basis of an alleged violation of its fundamental rights under Colombia's constitution.

In addition to its regular appeal of the preliminary injunction, Apple can appeal the denial of its tutela. The next court will then have to decide within 20 days on any questions involving Apple's constitutional rights.

By coincidence, there are presently two countries in which some smartphones are unavailable due to standard-essential patent (SEP) injunctions. Just a few days ago, OPPO and its OnePlus subsidiary stopped--for the time being--their German smartphone sales as Nokia is apparently enforcing one or more Mannheim injunctions (and obtained two SEP injunctions in Munich on Friday). OPPO hasn't closed down its German subsidiary, and customers continue to receive support; and unlike in the Colombian Ericsson v. Apple case, the injunction binds only OPPO itself, so its resellers are still able to sell products they have in stock or purchase outside of Germany. On Tuesday, the Dusseldorf Regional Court will rule on a couple more Nokia v. OPPO cases. I will then discuss the German situation in more detail. There are major differences between the two disputes. What this coincidence does show, however, is that Colombia is not the only jurisdiction in which a SEP injunction is presently being enforced.

Finally I'll show you a couple of screenshots from the Colombian order denying Apple's "tutela" (click on an image to enlarge):

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Apple's latest outrageous attack on app developers--ads on individual app pages--shows lawmakers and regulators must press ahead

"Human rights" is a broad term, and some people's (and companies') interpretation is broad beyond belief. Here's a very effective technique for analyzing claims of human rights violations: ask yourself with what more specific word the first part--"human"--could be (more) appropriately replaced in the given context.

Yesterday it became public in Colombia that Apple is--I kid you not--claiming a human rights violation and invoking Article 8 of the Universal Declaration of Human Rights because of Ericsson's preliminary injunction in Colombia over a 5G patent. Nowhere on the 48 pages of the motion did I find a human rights violation in the sense in which most reasonable people would understand it. All I found was a bunch of run-of-the-mill appellate arguments. The more appropriate term is "defendants' rights in commercial litigation." Arguably, we're talking about patent infringers' rights--and the problem is then that patent holders' rights are really a constitutional matter (property). Whether or not Apple actually will be deemed an infringer when all is said and done, the proper procedural avenue for that is a (regular) appeal.

Interestingly, Apple has just been warned against being sanctioned by the United States District Court for the Eastern District of Texas over a "misuse" of court rules. They brought an emergency motion instead of a regular motion.

When I ran a Twitter search for Apple in connection with human rights, one of the first tweets that came up linked to a Wired article, The Fallout from Apple's Bizarre, Dogged Union-Busting Campaign." The tweet talked about "the depths that #Apple will sink to in order to deny their workers basic human rights." (emphasis added)

Here again, the question is whether we're talking about human rights in a narrow sense or, more specifically, workers' rights. The freedom of association, which enables employees to form and join unions, is the latter. What happened at some of Apple's suppliers may be a different story, but as long as we're just talking about union-busting, I'd call it an attack on workers' rights--which is bad enough (don't get me wrong).

Now let's talk about developers' rights. Apple is taking its disdain for developers' rights to a new level now by expanding its Search ads--after wreaking havoc to businesses and entire business models, and potentially contributing to a recession as a venture investor noted--to individual apps' App Store pages.

They're now adding insult to injury. It means that app developers who already invest in development and marketing to get potential downloaders to visit their App Store page--where they're one click away from what you want them to do, which is to download your app--may have to pay off the big gatekeeper bully again or their competitors will redirect that precious traffic on the final screen on which you're vulnerable to competitors' ads.

Tim Sweeney, the CEO of Epic Games, accurately says "Apple will litter your own app page with ads for competing apps" (after already running Search Ads before people even get there)--and he's right that "Apple must be stopped":

They front-run searches for your trademarked app name, and place ad results above the result for your app.

But now, there’s more: Apple will litter your own app page with ads for competing apps. And keep all the ad money for themselves.

Apple must be stopped.

— Tim Sweeney (@TimSweeneyEpic) July 29, 2022

What's the solution? It's not impossible--but won't work in every jurisdiction--to combat this kind of abuse under existing laws. New digital platform laws such as the EU's Digital Markets Act may provide a fundamentally better basis, but won't necessarily close each loophole either, at least not immediately. However, what the DMA allows is bypassing Apple's App Store through direct installations and alternative app stores. That could help indirectly. If Apple faced competition from third-party app stores, Apple as well as its competitors would have an incentive to treat developers better. In the absence of such competition, you have the Kodak/Newcal situation of a single-brand market: while the iPhones competes with Android devices in the smartphone or smartphone operating system foremarket, there's no competitive constraint in the aftermarket of iOS app distribution because Apple can do almost anything it wants to app developers--even violate developers' human rights as long as there's no outcry in mass media--without losing any market share in the foremarket.

Lawmakers, regulators, and courts can see that Apple is shamelessly exploiting its monopoly power in the aftermarket by taxing app developers, massively diminishing a key revenue source for developers (in-app ads, at least until Apple introduce its own system), and further increasing user acquisition costs, which in part means money in Apple's pockets (example: app developers paying for ads related to their own app and place them on individual apps' pages just to reduce the likelihood that someone else's ad will appear on their own App Store page). The worst-case scenario would be that Apple places ads for its own apps on competing app developers' App Store pages--Sherlocking on Apple Search steroids.

Apple is unrepentant. Class action after class action gets filed. Antitrust investigation after antitrust investigation gets launched. But lawmakers and regulators must act more swiftly and more decisively, lest this end up like The Tortoise and the Hare. It was a major mistake--though easily explained against the political backdrop--that too many politicians and regulators initially let Apple get away with its "privacy" pretext.

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BREAKING: Apple alleges human rights violation by Colombian court that ordered 5G iPhone/iPad sales ban, Ericsson, and its lawyers; invokes Art. 8 of Universal Declaration of Human Rights

BREAKING NEWS

Apple leaves no stone unturned in its efforts to get Ericsson's Colombian iPhone/iPad injunction over a 5G standard-essential patent (SEP) lifted, and is now accusing Ericsson, its lawyers, and the court that ordered the injunction to violate basic human rights, invoking even Art. 8 of the famous Universal Declaration of Human Rights. I wonder what's next--voting rights for iPhones?

Just yesterday, Judge Rodney Gilstrap (Eastern District of Texas) denied Apple's antisuit motion as he declined that invitation to interfere with a foreign patent case. Now I've been able to obtain a copy of a publicly-accessible court document that is truly astonishing:

Apple has asked the Tribunal Superior de Distrito Judicial de Bogotá (Superior Court of the Judicial District of Bogotá) for a "tutela"--a form of emergency relief--against

• Ericsson,

• its Colombian law firm (OlarteMoure),

• Carlos R. Olarte (a name partner of that firm and Ericsson's lead counsel in the Colombian part of the Apple patent dispute), and

• the Civil Court No. 43 of the Bogotá Circuit.

Here's the header section (click on the image to enlarge):

Incredibly, Apple bases its motion for that emergency measure on Colombia's constitution as well as

• Article 8 of the Universal Declaration of Human Rights (UDHR)--a document famously adopted by the United Nations General Assembly in 1948-- and

• Article 25 of the American Convention on Human Rights, which has been ratified by two dozen Central and South American countries.

Here's the passage that invokes those international human rights declarations (click on the image to enlarge):

Art. 8 UDHR says this:

"Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law."

This obviously doesn't mean that every time you disagree with a judge, this article applies. In fact, the Equality and Human Rights Commission, a governmental entity in the UK entasked with protecting and promoting human rights, explains its meaning as follows:

"Article 8 protects your right to respect for your private life, your family life, your home and your correspondence (letters, telephone calls and emails, for example). [...] The courts have interpreted the concept of ‘private life’ very broadly. It covers things like your right to determine your sexual orientation, your lifestyle, and the way you look and dress. It also includes your right to control who sees and touches your body. For example, this means that public authorities cannot do things like leave you undressed in a busy ward, or take a blood sample without your permission."

Now, no one has left an Apple executive undressed in Colombia or taken a blood sample without permission. By extension, Art. 8 UDHR "also covers your right to develop your personal identity and to forge friendships and other relationships. This includes a right to participate in essential economic, social, cultural and leisure activities." (emphasis added)

The unlicensed use of patents, however, is not exactly an "essential economic activity" protected by Art. 8.

So what is it that Apple wants to prevent Ericsson and its lawyers from doing?

The motion wants them to stop sending allegedly "threatening communications" to Apple's "contractual partners and resellers" and "damaging the good name of Apple Colombia S.A.S. through whatever communications channel." (Note that the original motion is in Spanish, and I'm just translating it myself--I've used that language in various professional contexts for almost two decades, though I'm obviously not a certified translator.)

Apple generates only about a fifth of a percent of its worldwide sales in the South American country, but is currently unable to sell its latest iPhones and latest cellular iPads there. Not only is Apple's Colombian subsidiary, Apple Colombia S.A.S., enjoined but the injunction specifically states that resellers are not supposed to sell the products deemed to infringe, and Colombia's customs authority has been instructed to confiscate any new shipments.

Apple's 48-page "Hail Mary"-style motion asserts that "Apple has done everything in its power to reach an agreement with Ericsson, other than caving to Ericsson's supra-FRAND demands." As we know from the U.S. part of the dispute, Ericsson is actually convinced of having made Apple a FRAND offer.

Apple's motion complains not only of the "broad and illegal interpretation" of the injunction by Ericsson and its lawyers in letters sent to Apple's contractual and commercial partners in Colombia, but also accuses them of "providing deceptive information to the media," which according to Apple "created a media circus":

"As a result, in addition to the damages caused, the costs that Apple Colombia has incurred in order to comply in good faith with the broad and illegal interpretation Ericsson and its lawyers have given to the court orders, the loss of profits, and among others, Apple Colombia has been publicly treated as a patent infringer [...]"

Well, ten years and two weeks ago, this blog reported on Apple sending letters to Samsung's commercial partners in the U.S., portraying Samsung as a patent infringer and urging Samsung's resellers to stop selling certain Galaxy devices. The difference is that Samsung--though it sharply disagreed with Apple's course of action--didn't allege a human rights violation by Apple...

Apple says it's suffering "irreparable harm" and, therefore, "cannot wait until the legal options ordinarily available to it (appeals) have been adjudicated."

Section 6 of Apple's motion claims that the court order has various "legal defects." These are the subheads:

• "6.1 Material defect: Court No. 43 did not base its decisions in applicable statutes and did not state the reasons for tis decisions"

• "6.2 Absolute procedural defect: Court No. 43 ignored the procedural stage, which led to the violation of basic rights of Apple Colombia"

• "6.3 Factual defect: Court No. 43 ignored the evidence that would have allowed it to conclude that a preliminary injunction was not warranted"

• "6.4 Ignorance of legal precedent: Court No. 43 ordered the preliminary injunction ignoring the Constitutional Court's legal precedent"

• "6.5 Direct violation of the Constitution: Court No. 43 ignored Art. 29 of the Political Constitution"

As I read the motion, I can't help but conclude that Apple's Colombian counsel portrays as constitutional issues what are run-of-the-mill appellate arguments in a preliminary injunction context.

Unfortunately for Apple, patent rights also have a constitutional dimension in many jurisdictions (examples: Article 1, Section 8, Clause 8 of the United States Constitution; and in Germany it's recognized that intellectual property, too, falls under Art. 14 of the country's Basic Law, as explained on this German WikiBooks page).

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Why would a patent office be afraid of bloggers? Only if it has something to hide. Like the EPO.

Over the years I've learned not to take things personally, but there are situations when it's hard. I did take it personally when I faced a shitstorm in 2012 after a totally erroneous decision by a judge who still doesn't correctly state the law on the copyrightability of declaring API code. And this morning I saw something that is just absurd. I'm talking about the last bullet point in the following quote from the EPO's official allegations against Elizabeth Hardon, a staff union leader they're now trying to fire:

"(1) actively cooperated with the campaign conducted by C [suspended in-house judge] against the EPO, members of the Administrative Council, and individual EPO staff members.

Specifically, the evidence demonstrates that she:

• discussed with C the strategy for his campaign and provided instructions to him;

• provided C, on at least one occasion, with non-public contact details for all delegates of the Administrative Council, which C used to send anonymous defamatory email messages;

• was in personal contact with at least one blogger habitually attacking the EPO, Mr. FM of FOSS Patents, which resulted in the publication on FOSS Patents of attacks regarding alleged corruption of delegates of the Administrative Council;"

First, I don't disclose sources unless they wish to be disclosed. Also, I sometimes get messages from anonymous sources. Therefore, I can neither confirm nor deny any allegations of someone having been in contact with me, regardless of how truthful or untruthful an allegation is. As for "personal contact", I can generally say that no SUEPO (staff union) person has ever met me or even talked to me over the phone--I listened to some of their speeches at demonstrations in Munich, without approaching them. I only talked to two persons at an EPO demo. I asked one guy to let me take a picture of a banner, and I said hello to an EPO in-house judge I happen to know for a reason that has nothing to do with the labor dispute.

Second, I comment on the EPO situation from time to time (not even very frequently), but "habitually attacking the EPO" is really not the way I view it. On one major issue I even agreed with the president of the EPO (though an expert on suicides tends to agree with SUEPO).

Third, regardless of who my sources are, none of my sources even tried to persuade me to allege "corruption of delegates of the Administrative Council [of the European Patent Organization]." The closest thing to corruption--and "closest" is an overstatement--that I wrote about was that the EPO allegedly pays for the visits of its supervisors (especially those from relatively poor countries) to Munich doctors. I wrote about this because I heard it at a SUEPO demo. I remember that Mrs. Hardon was among the speakers, but I also remember with certainty that the thing about medical care was mentioned by a male speaker at a demonstration about a year ago. Apart from that, I merely mentioned that Administrative Council delegates often hope to become EPO president or vice president, and that this ambition appears to prevent at least some of them from doing their supervisory job right.

Actually, it's only after the above reference to "corruption" in an official EPO document that I start to wonder whether the EPO leadership's hypersensitivity may have a factual reason that I don't know about yet.

Getting back to the first point: even if one wanted to assume arguendo that Mrs. Hardon had communicated with me, there wouldn't be anything wrong about it. Managing Intellectual Property magazine put me on their list of the 50 most influential people in IP in five of the last ten years, and Canadian IP lawyers and blogger Barry Sookman once listed FOSS Patents among the top three patent law blogs in the world. SUEPO must have the right to communicate with someone like me, just like BMW or Allianz couldn't prevent their staff representatives from talking to the general press.

The EPO leadership is just paranoid about bloggers who criticize what's wrong with the way that organization is run. But those EPO folks don't appear to understand that they're only making things worse by the day. They threatened legal action on at least four occasions against TechRights author Dr. Roy Schestowitz, who is still the most prolific writer on the EPO labor dispute. Now they blame a staff representative for my commentary without a factual basis.

What do they have to fear? They must have something to hide.

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Shame on the European Patent Office for its legal threats against TechRights author Dr. Roy Schestowitz

The European Patent Office is the last dictatorship on Central European soil. Local police cannot allowed to enter the EPO's facilities without an invitation from the president. National court rulings cannot be enforced; compliance is voluntary. Employees and visitors are subjected to covert surveillance. And if employees are fired (or "suspended"), which just happened to several staff representative, they won't get their day in court for about ten years.

The EPO's leaders have a rather selective attitude toward the law. When it's about their wrongdoings, they want their organization to be a lawless, autocratic island that disrespects human rights. But when the rules of the world around the EPO come in handy, the leadership of the EPO tries to leverage them against those who dare to criticize it.

A Munich newspaper reported last week that the EPO even tried to get a staff union lawyer disbarred. And today World IP Review has reported on legal threats by the EPO against Dr. Roy Schestowitz, author of the TechRights blog (temporarily the link was broken, but at the time of publication, it worked). In July it became known that the EPO blocked access from its local network (which examiners use for prior art searches) to TechRights. I strongly criticized that move, and found it futfile. But the EPO leadership stops at nothing, and is now trying to silence its fiercest and most frequent critic in the entire blogosphere.

Dr. Schestowitz had mentioned this on Twitter, but he had not revealed any specifics before the WIPR article. You can find his commentary on the WIPR story--and information that purports to indicate a publisher has also been threatened--here.

TechRights has always been an opinionated, rather combative blog. Still, with almost 20,000 blog posts, Dr. Schestowitz had not received a legal letter before an EPO lawyer sent him one.

Many thousands of TechRights posts took aim at Microsoft, and typically not in diplomatic terms. But Microsoft, which has a huge and sophisticated legal department, never thought it prudent to send a cease-and-desist letter. Nor did any other company that was criticized, and there were many (though Microsoft used to bear the brunt of TechRights' criticism).

The EPO leadership must be very afraid of TechRights. It should be. Dr. Schestowitz is doing a first-rate job at keeping track of developments at and around the EPO. He doesn't miss a beat. I don't mean to say that I would always use the same terminology, but the EPO should respect the freedom of speech. If the EPO leadership wants more positive press coverage (and not just from its "media partners" like Les Échos), then it should tackle the underlying issues.

If the EPO ever sued Dr. Schestowitz, I would contribute money and lend an endorsement to a crowdfunding effort to finance his defense.

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EPO labor dispute getting completely out of hand: three union leaders suspended, others pressured

The conflict between the leadership and staff representatives of the European Patent Office appears to be totally out of control now. The latest information would be unthinkable anywhere in the civilized world, but the European Patent Organization simply isn't part of the civilized world around it.

On Monday, the Staff Union of the European Patent Office (SUEPO) published a flyer about what allegedly happened in The Hague (the EPO's #2 seat in terms of the number of employees) on Friday (this post continues below the document):

15 11 16 SUEPO Flyer by Florian Mueller

Let me copy the three key allegations here--they just refer to two of the staff representatives by their first names, with "Jesus" being a typical Spanish first name (with an accent over the "u") and "Laurent" being a common French first name:

• Jesus was picked up from his office by President's emissaries. Upon return, he was visibly shaken and appeared to have suffered a nervous breakdown. Medical help was called, and he had to be wheeled out of the office in bad shape. He appears to have been subjected to severe, concerted and wilful pressure, especially intended to harm and destabilise.

• Laurent got or was scheduled to get a similar treatment. Noticeably distressed, he had to rush for medical help externally.

• The other members of the Staff Committee who witnessed the event were also deeply perturbed.

The last time I read stories like that they referred to Romania under its communist dictatorship. They also picked up people who returned in a perturbed state, though they also made them disappear quite often.

Last night I got a message--from a reliable source I won't disclose but it's nowhere near Munich--that three leaders of SUEPO's Munich chapter have been "suspended," among them Elizabeth Hardon, who recently wrote a letter complaining about the way she was treated. Also, the EPO had threatened legal action against her.

According to what I read on Twitter, TechRights blogger Dr. Roy Schestowitz (whose blog cannot be accessed from the EPO network without the use of software work-arounds for this kind of censorship) has also received legal threats from the EPO leadership. No details have become known yet.

I have not been threatened so far, but I am deeply sorry for those who have been. Rumor has it that Mrs. Hardon and Dr. Schestowitz are not the only ones.

It appears that Mrs. Hardon has decided to rather be proud and "suspended" than bow to lawlessness, corruption, and evil. I am so sorry for her and the other suspended union leaders, and I truly admire them for their steadfastness.

Dr. Schestowitz also deserves the greatest respect for his principled stance. Despite all the bullying, he continues to call out the EPO leadership on its actions and decisions. Most recently, TechRights has started to talk about the unbelievable, extraordinary career path of Mrs. Elodie Bergot. It appears that the juiciest part of the story is actually not even on that blog but hidden somewhere between the lines of that post or the forthcoming one (Part II) on the same topic.

TechRights is a blog I recommend all those concerned about the EPO's corrupt ways to read regularly. I will write about EPO issues from time to time, but not nearly as often. Also, I wish to highlight the IP Kat blog's announcement of forthcoming reports on staff suspensions and other EPO issues for this week.

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European Patent Office intentionally treats patent applicants and staff unfairly: leaked documents

While I'm currently taking a break from patent (not copyright) blogging, there's a few EPO-related issues I quickly wanted to draw attention to (and would comment on in more detail if I had time).

Dr. Roy Schestowitz, who has been authoring the TechRights blog for nine years, obtained (after I encouraged him to do so) a copy of an internal document of the European Patent Office that stands as incontrovertible evidence of the EPO's institutionalized unfairness. Companies filing large numbers of patent applications receive preferential treatment including highly questionable package deals along the lines of "drop these 500 patent applications and in exchange we'll grant 1,000 other weak applications of yours in short order".

Article 7 of the Universal Declaration of Human Rights states the following: "All are equal before the law and are entitled without any discrimination to equal protection of the law." But the EPO doesn't believe in human rights and is, as Dr. Schestowitz accurately notes, run like a private, profit-maximizing enterprise as opposed to an honorable institution properly applying the law. I've previously likened the EPO to FIFA, but with the latest evidence I almost feel like I have to ask FIFA for an apology for this comparison, given that different standards must be applied to a sports body vs. a government institution in charge of a key area of commercial law. FIFA doesn't rig soccer matches, at least not the extent the EPO's leadership compromises the patent granting process.

The general press should take much more of an interest in the EPO's corruption. Yesterday I was pleased to see that Heise online, Germany's leading IT news site, has written about this after reading the TechRights story.

I also wanted to point to some new developments in connection with the EPO leadership's repressive actions against staff union leaders. The following letter by SUEPO's (Staff Union of the European Patent Office) Munich chair, Elizabeth Hardon, to the chairman of the Administrative Council (the politburo) of the European Patent Organization speaks for itself:

15-10-08 Letter Re. EPO Elizabeth Hardon by Florian Mueller

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Leadership of European Patent Office pressures staff union to remove links to FOSS Patents blog

What's so outrageous about my two most recent posts on the EPO labor conflict (1, 2) that the Staff Union of the European Patent Office (SUEPO) had to remove its links to (and quotes from) those posts?

On SUEPO's homepage there are now at least two entries that used to point to this blog and now say the following:

Document temporarily removed due to threats of reprisals from EPO management. SUEPO is taking appropriate action to counter the threats.

Here's a screenshot (click on the image to enlarge):

It's not even the first act of censorship against an independent blog. In July it became known that the EPO blocked examiners' access to TechRights, another blog that calls the EPO leadership out on its wrongdoings.

This blog here is critical of what's going on at the EPO but far from SUEPO-aligned.

In the earlier one of the two posts, I actually concurred with EPO president Battistelli on the complicated issue of how SUEPO should deal with a suicide rate that appears to be more than twice as high as that of the average Dutch or German populations but still, in my opinion, is not necessarily attributable to the lamentable situation at the EPO (given that such small statistical samples are not reliable).

In the more recent one, published earlier today, I explained why I didn't agreed with SUEPO's choice to march to a local authority today, given that the EPO enjoys diplomatic immunity and local authorities can only enter the EPO's premises with the EPO president's consent.

What may have riled the EPO leadership is that I published documents from internal proceedings targeting the chairwoman of SUEPO's Munich chapter. The EPO's internal "ServRegs" contain some strict prohibition of such disclosures, which is acceptable in connection with what really needs to be kept confidential but unfortunately also used in areas where the EPO needs more transparency.

Article 20, Unauthorized disclosure: "A permanent employee shall exercise the greatest discretion with regard to all facts and information coming to his knowledge in the course of or in connection with his duties; he shall not in any manner whatsoever use or disclose to any unauthorized person any document or information not alreayd made public. A permanent employee shall not, whether alone or together with others, publish or cause to be published, without the permission of the president of the Office, any matter dealing with the work of the Organization."

Article 22, Disclosure in legal proceedings: "A permanent employee shall not without permission from the president of the Office disclose, on any grounds whatever, in any legal proceedings, information not alreadyy made public of which he has knowledge by reason of his duties. Permission may be refused only where the interests of the Organization or of a Contracting State so require. It may not, however, be refused if, in the opinion of the court, this would be likely to lead to a miscarriage of justice."

"Miscarriage of justice" is definitely a major concern with respect to legal proceedings relating to the EPO labor conflict.

Finally, some recommended reading for whomever at the EPO believes that it's a good idea to prohibit links to this blog: the Streisand effect.

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European Patent Office threatens legal action against staff union leader: escalating conflict

Last week, the TechRights blog published a letter by the head of the EPO's investigative unit to Elizabeth Hardon, the chairwoman of the Munich chapter of the Staff Union of the European Patent Office (SUEPO), summoning her to a hearing last Thursday. I also blogged about this development because it shows that the promise of "union recognition" is just a carrot the EPO leadership has been dangling to staff without any genuine desire to improve the internal climate.

Mrs. Hardon has probably never been at a greater risk of being fired, and the EPO is now not only talking about that scenario but additionally threatening "to take any other legal measures against [her]" over the alleged disclosure of the letter that was published last week. Here's the latest letter, signed by Elodie Bergot, Principal Director Human Resources of the EPO (this post continues below the document):

15-09-10 EPO Letter to SUEPO Munich Chair by Florian Mueller

Since I didn't receive a copy of either letter from Mrs. Hardon (whom I listened to at a couple of EPO demonstrations in Munich), I have no idea whether she is the source of the leak. Even if a letter is marked as "confidential," the EPO is so large an organization that the source could be anywhere, especially in light of the fact that presumably more than 99% of the staff is against the current leadership style.

As an employer, I also care a lot about confidentiality. However, confidentiality obligations can only apply to what is reasonably designated as confidential. I find it hard to see how the EPO could realistically demand silence over repressive action against one of the leaders of its staff union. Of course, if this involved third-party secrets (such as patent applications that haven't been published yet), then everyone would have to maintain strict confidentiality.

If, for example, Allianz or BMW (two other large Munich-based employers) threatened to fire one the labor union leaders among its employees, that story would draw press coverage within less than 24 hours.

More than anything else, this appears to be an attempt by the EPO to prevent SUEPO from communicating with the outside world on a level playing field. Obviously, the EPO's own website states the positions of its leadership, and that is something SUEPO has to live with. But SUEPO must at least be allowed to create transparency in such a critical context as this one.

SUEPO is holding another demonstration today as I read on its website. While previous demonstrations involved marches from EPO buildings to diplomatic representations of key EPOrg member states, staff will "march to the local Labour Inspectorate, Gewerbeaufsichtsamt" today. That one is an institution of the Bavarian government (part of the administration of the district of Upper Bavaria, to be precise). In a letter addressed to that institution, SUEPO argues that the German government has a particular duty of care for the many EPO employees based on its territory (and notes that approximately 25% of the EPO staff are German citizens).

I understand SUEPO's desire to draw attention to certain issues, but as the law stands, German authorities are not allowed to supervise the EPO in any way other than the influence the German government has by virtue of its status of being a contracting state and, therefore, being represented on the Administrative Council of the EPOrg.

Just like in my previous post on the EPO labor conflict, my message to EPO staff is that you can't have your cake and eat it. In a perfect world for you, you would have all the benefits (including tax benefits) of being employed by a famous international organization and would be under the protection of local authorities. That won't work. You either have to bite the bullet, stay at the EPO, enjoy certain privileges but also live with the fact that you won't have all the rights that your colleagues right across the street at the German Patent and Trademark Office don't have (though German patent examiners are not allowed to go on strike, by the way). Or you have to determine that the overall "package" you get at the EPO is still better than your best alternative on the job market. If you elect to take that package, you must accept certain structural shortcomings.

Far be it from me to justify human rights violations, cronyism, or crookery. Certain aspects of what the EPO leadership (including the Administrative Council) does are truly problematic and unacceptable. But instead of demonstrating in front of a Bavarian government agency that has no legal basis for helping you, you should think hard about whether you want to stay or leave. While Art. 20 of the Protocol on Privileges and Immunities of the European Patent Organization says the EPO should cooperate with national authorities in certain areas, Article 1 (2) of the PPI comes with the following practical restriction:

"The authorities of the States in which the Organisation has its premises shall not enter those premises, except with the consent of the President of the European Patent Office. Such consent shall be assumed in case of fire or other disaster requiring prompt protective action."

As a reaction to my previous post, someone told me that only a privileged few could simply choose their job. Obviously, with thousands of EPO employees affected, there are thousands of individual situations. But in general engineers and other scientists with multilingual skills are definitely in demand. As I wrote last week, most EPO employees would simply have to accept an initial pay cut (especially from an after-tax point of view) if they decided to work in the private sector. Some might reach their previous income level again over time; others might never reach it again. But if you left, then the Gewerbeaufsichtsamt of Upper Bavaria would indeed be responsible for your labor conditions.

I also don't consider it a valid argument that many EPO employees may have bought a house in the Munich area and would have to stay here due to long-term mortgage arrangements. First, there are many tech jobs in the Munich area itself. Second, if you had to move to another city or country, German banks would have to accept that you rescind your mortgage contract. Third, house prices have gone up a lot in Munich in recent years, so you wouldn't have to sell at a loss.

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In the face of repression, EPO employees should quit their jobs to promote innovation in industry

Political initiatives to improve the terrible situation at the EPO appear to be "too little, too late." Now that the summer vacation season has ended, it's apparent that things keep getting (even) worse.

Skeptics of the EPO leadership's intentions with respect to "union recognition" have already been proven 100% right. Contrary to resolving conflicts with the staff union, president Battistelli (aka Blatterstelli) and his minions have only one objective with respect to SUEPO: total suppression. As you can read in this TechRights post, the EPO's Investigative Unit (which would be more appropriately named Stasi) scheduled an "interview" of the staff union's Munich chairwoman for today. Her name is actually no secret: Elizabeth Hardon. She's one of the signatories you find here (this post continues below the document):

15-09-07 SUEPO Flyer on Suicide by Florian Mueller

I have heard from EPO staff that Mrs. Hardon was demoted last year by personal decision of Mr. Battistelli, on a basis that my sources consider unfair. She may now even be fired.

The above PDF document, which actually contains a SUEPO flyer as well as correspondence between SUEPO and Mr. Battistelli, relates to a very sad incident: the fifth suicide of an EPO employee in 39 months. But in this regard I neither support Mr. Battistelli nor SUEPO. I agree with either one to a limited extent and mostly disagree with both.

Mr. Battistelli -- and this is the first time for me to agree with him and it may also be the last -- is absolutely right that it was not enough for SUEPO to wait for a limited period of time before it tried to gain political mileage out of the latest suicide. Should Mr. Battistelli's representation (which I don't doubt in this particular case) be correct that the widow didn't want anyone to talk about the personal circumstances of this tragic incident, then SUEPO should have respected that forever, not just for two weeks.

The part of Mr. Battistelli's letter that I find ridiculous is where he asks for a climate of trust for his reforms, some of which violate long-standing principles of European labor law.

Another problem that SUEPO has here is that even five suicides in 39 months (almost one tenth of a percent of the EPO's workforce) are too small a number to be statistically reliable. There are definitely serious issues at the EPO, but small statistical samples have too much variance. Five suicides can happen among thousands of EPO employees even for circumstances that have nothing to do with the social and human rights conflict at that organization. SUEPO has far stronger -- and ethically less debatable -- arguments to demand a change for the better.

Should those suicides have had anything to do with the social conflict at the EPO, those people would have died for the wrong reason. I'd like to quote the following from TechRights:

"Staff at the EPO needn't be suicidal or depression-leaning. Many employees — and examiners in particular — are highly qualified, often with Ph.D.-level degrees and many years of technical experience."

I'll take this one step further: EPO employees who are unhappy about the situation should try to find a better way to vote with their feet than taking to the streets of Munich (and other cities) to no avail. They should quit their jobs at the EPO and take jobs in the private economy. Engineering jobs, especially.

Dear EPO Employees: if you truly wish to promote innovation, the EPO is the wrong place to be. If you believe that this system -- broken beyond repair -- is good for innovation, you just believe and propagate the same lies that the EPO leadership you hate so much has been telling for a long time.

If you want to help Europe to be more innovative (let's face it: Europe has a major innovation problem), bring your education, your skills, your talents and your energy to the table where you can contribute to the creation of actual products. Wouldn't it be so much more rewarding for you to learn about customers using products you helped create than to grant patents, most of which won't be upheld in court (at least not in the form in which you grant them) when seriously challenged (see 1 and 2)? Apart from that, most of the patent applications you process aren't filed by European companies anyway.

I know that your net salaries at the EPO may not be immediately matched by private sector employers (though it may happen if you get promoted over time). You would have to accept an initial pay cut. But money should never be the only reason to go to work. For you, the risk-reward ratio is actually much better than for patent attorneys. Patent attorneys -- who make far more money on the patent applications you process than you do, as you know -- have to invest a lot more time and money in their education, and when they start to make serious money, the likelihood is next to zero that they could reach the same income level in an engineering capacity (they'd have to get very senior management positions at large corporations). Your situation is different.

For the overall economy, a bloated patent system with too many examiners and too many patent attorneys is a waste. It's a waste because Europe needs scientists and engineers to create true innovation.

Let me tell you about my own perspective, too. I've been fortunate to do some really interesting patent-related work for some time without ever having received formal training. Last year I founded an app development company and closed down my consulting firm. I've also reduced my patent-related blogging a lot, as you can see in the right column here. It's so much more enjoyable to create "real stuff" that people will use (I'll launch both games early next year) than to deal with discussions of what the state of the art was in 1997 or how a certain claim term should be interpreted. I don't want to be a hypocrite: I'm convinced I'll make far more money with my apps than I ever would have with consulting (and my consulting business was actually quite successful in all respects). But even if I knew that I was going to make only half as much money in app development, I would still prefer it by a wide margin.

It's self-delusionary for you to think that the EPO is the best place for you to work, or the best place for you to promote innovation. Start a new life. European industry needs you to build, for example, electric and self-driving cars before that market will be dominated by Silicon Valley companies. Your scientific knowledge, your overview of the state of the art, your experience in analyzing technologies, your ability to express yourselves in the three official languages of the EPO -- those assets are underutilized where you presently are.

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17 Members of the European Parliament raise questions about human rights situation at the EPO

As I reported last week, the human rights conflict at the European Patent Office continues and certain national governments acknowledge that there is an issue (or, more precisely, a host of issues). Political pressure on the EPO leadership, including the Administrative Council (which has so far done a better job at being part of the problem than at being part of the solution), is coming from more and more sides.

For example, 82 members of the Parliamentary Assembly of the Council of Europe (PACE) have signed a written declaration expressing concern over a "rollback of fundamental rights at the European Patent Office." Its signatories include leaders of parliamentary groups and members from all five major political groups in the PACE.

The Council of Europe is not an EU institution. It's a separate diplomatic organization whose members also include major non-EU member states such as Russia. Its focus is on human rights issues. That fact makes a declaration by many of its members relevant. Also, all those signatories are also members of their national parliaments.

But unlike the PACE, the European Parliament--which is an EU institution--has real decision-making power as a European-level co-legislator. While the EPO is formally not an EU institution, the EU has decided to put it in charge of granting the future European "Unitary Patent" and it has furthermore allowed essentially the same group of national government officials who run the EPO to control the future Unified Patent Court. The EU can't turn a blind eye to what's going on at the EPO. If the EU truly were as principled a watchdog of human rights and the rule of law as it claims when dealing with countries like Russia and China, it would rule out working with the EPO and would instead set up an EU patent office. However, despite the great work it does in certain areas, there are contexts in which the EU uses double standards.

17 Members of the European Parliament (MEPs)--2 from the libertarian Alliance of Liberals and Democrats for Europe and 15 from the Confederal Group of the European United Left - Nordic Green Left (a far-left but still democratic group)--have recently submitted official questions to the European Commission concerning the human rights situation at the EPO. The Commission has an obligation to respond, though its answers are typically evasive on any delicate issue. Here, the Commission could respond by denying responsibility for the EPO situation, since it only has observer status and no voting rights on the Administrative Council, but the truth is that the EPO will soon be by far and away the biggest service provider to the EU.

I just wanted to publish those two parliamentary questions here (also to make it easier to find them on Google) without further comment.

Question for written answer E-009256/2015
to the Commission
Rule 130

Fernando Maura Barandiarán (ALDE) and Javier Nart (ALDE)

Subject: Situation concerning the fundamental rights of EPO employees

The administrative council of the European Patent Office (EPO) introduced a new quality and efficiency strategy in 2010, aimed at improving quality and lowering costs. Most of the measures put in place under this new strategy do not appear to respect the fundamental rights of employees under the European Union Charter. The case was taken to the Dutch courts, which ruled that the EPO was violating the right of collective bargaining, the right to strike and the right to freedom of expression and information. Staff at the EPO have also spoken out on a number of occasions against the repressive, authoritarian system of management that has been introduced there, which is being used as a way to drastically restrict their rights.

Is the Commission aware of the situation concerning the rights of those employed by this international organisation, which has its headquarters within EU territory?

Has it undertaken, or is it considering undertaking, any kind of investigation into whether the EPO has violated Articles 11, 12 and 28 of the EU Charter of Fundamental Rights?

Question for written answer E-008382/2015
to the Commission
Rule 130

Kostadinka Kuneva (GUE/NGL), Lynn Boylan (GUE/NGL), Martina Anderson (GUE/NGL), Pablo Iglesias (GUE/NGL), Lola Sánchez Caldentey (GUE/NGL), Stelios Kouloglou (GUE/NGL), Paloma López Bermejo (GUE/NGL), Barbara Spinelli (GUE/NGL), Fabio De Masi (GUE/NGL), Tania González Peñas (GUE/NGL), Helmut Scholz (GUE/NGL), Neoklis Sylikiotis (GUE/NGL), Kostas Chrysogonos (GUE/NGL), Matt Carthy (GUE/NGL) and Miloslav Ransdorf (GUE/NGL)

Subject: Violation of labour and trade union rights in the European Patent Organisation (EPO)

The Dutch appeal court recently ruled (case number 200.141.812 / 01 / 17-2-2015) that the European Patent Organisation (EPO) violated workers' labour rights deriving from the EU Treaties and the EU Charter of Fundamental Rights. Consequently the Dutch court, exceptionally, has not accepted the immunity EPO enjoys as an international organisation, since this immunity cannot allow for human rights violations. Nevertheless EPO declared it would ignore the ruling pleading execution immunity.

• Does the Commission agree with this ruling, according to which, as regards guaranteeing fundamental rights, the EU Treaties and the EU Charter of Fundamental Rights prevail over bilateral and multilateral agreements, including those providing immunity to organisations such as the EPO?

• If so, what does it intend to do to prevent the abuse of immunity rights and defend the EU citizens' and employees' rights and the community acquis in organisations such as EPO which while exercising judicial functions is at the same time breaching the European legal order rules?

• How does the Commission scrutinise that the positions EU Member States' representatives take in the administration of EPO are compatible with the rights enshrined in the EU Treaties and the EU Charter of Fundamental Rights – taking into account that the EU Member States constitute the majority in the organisation?

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1,000 EPO employees took to the streets of Munich to protest hidden surveillance, other violations

About two months after I expressed the opinion that potential union recognition by the European Patent Office (after some 40 years of existence) would be insufficient to solve the social conflict there, it turns out that things have not only failed to improve but actually deterioriated. And president "Blatterstelli"'s days may already be numbered because even the government of his own country appears ready to sack him anytime.

Yesterday, the Staff Union of the European Patent Office (SUEPO) held a demonstration in front of the EPO's main building in Munich. While there have already been various other SUEPO demonstrations in Munich, a couple of which I reported on, yesterday's protest had a new (though not exclusive) focus: surveillance by means of hidden cameras and keyloggers. Participants in the demonstration carried signs showing surveillance cameras:

It appears credible to me that, as the organizers claimed, approximately 1,000 EPO employees participated -- a fairly high percentage of all Munich-based EPO staff. On the next three pictures (this post continues below them) you can see parts of the crowd:

SUEPO's message to the EPO's leadership, particularly the self-serving Administrative Council (which bears the ultimate responsibility for the whole mess), is loud and clear: EPO employees want to see actions, not words. Improvement, not promises. And this has to start with at least a modicum of respect for fundamental human rights, no matter how hard that may be for the members of the Administrative Council, the president and the vice presidents of the EPO.

In April it was already remarkable when a Munich-based Dutch diplomat addressed protesters and expressed concern over bad press. At the same demonstration it was also mentioned that Mr. Battistelli threatened to resign. His resignation may actually be closer than ever now. At a recent EPO event in Paris, French innovation minister Axelle LeMaire said (starting at 109:40 in this official video recording):

"L'innovation c'est un impératif, un impératif économique. Et ce qui est vrai pour la technologie, l'est aussi pour l'innovation publique, les modes de gouvernance, l'innovation sociale. Et à ce titre, même si ce n'est pas l'objet de notre rencontre ce matin, le gouvernement français connaît les difficultés sociales qui s'expriment au sein de l'Office Européen des Brevets et à ce sujet, l'office a un devoir d'exemplarité, de transparence absolue dans le respect des droits des agents qui y travaillent."

My unofficial translation:

"Innovation is imperative, imperative for the economy. And what is true for technology is also true for public innovation, meaning governance structures and social innovation. And while we are on this subject, though this is a departure from the subject of this event here, the French government is aware of the social issues at the EPO and, in this regard, the EPO has a duty of being exemplary, a duty of absolute transparency with respect to the rights of the people who work there."

It's really unusual in two regards. One, this speech was given at the European Inventor Award ceremony, an event at which the EPO wanted to celebrate itself. I consider that event a sad thing. In my opinion, a patent office that promotes in any way (by this I also mean the USPTO with its Steve Jobs patents exhibition) patents that are or could still be used in litigation miserably fails to be neutral and its leadership should be replaced. But for the EPO's leadership, that event is meant to be a day of joy and self-aggrandizement. The fact that a politician would touch on the delicate issue of the EPO labor conflict and human rights issues on such an occasion gives those remarks about ten times more weight than if they had been made in daily business. Two, Mr. Battistelli is French and the national governments of officials of international organizations are usually the last ones to withdraw their support.

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The so-called data protection officer of the EPO signed off on keylogging, hidden cameras

Given Germany's experience with totalitarian surveillance states before and (in the eastern part) after World War II, I wonder for how long Germany's chancellor and minister of justice, as well as the Bundestag (parliament), can tolerate an international organization on German soil that appears to stop at nothing in its human rights violations. The European Patent Office (EPO) abuses its "immunity" and one of the first reform measures should be to put each facility of the EPO under the jurisdiction of the respective country, at least with respect to human rights including data privacy. There is now conclusive evidence that the EPO has violated basic human rights not only of its staff but even of unsuspecting visitors of one of the EPO's Munich facilities.

On Friday, the data protection officer of the state of Bavaria (whose capital is Munich, where the EPO is headquartered) was quoted by a newspaper (English translation here) with the suggestion "that an external data protection supervisor be assigned to the EPO because the internal inspectors are not independent enough and in the absence of any action matters are likely to get out of hand." It has become known that the EPO used keyloggers and hidden cameras in its internal investigations of what may actually just have been the exercise of one or more people's freedom of speech with respect to the EPO's Jack Warner, vice president Željko Topić. After Mr. Topić lost a court ruling in his country of origin (Croatia), can be accused of pretty bad stuff. The Bavarian data privacy commissioner was spot-on: while the EPO does have a "data protection officer," that person is just a dictator's minion with no say over anything important.

A document has been leaked to me that proves a complete dereliction of duty. The "data protection officer" in name only signed off on covert surveillance measures (keyloggers and hidden cameras) on December 3, 2014 with the following rationale:

"Given the seriousness of the allegations I consider the proposed measures as proportionate."

Seriousness of the allegations? Are you kidding? This here is not about an assassination plot, or about gaming the patent system in the sense that someone would have leaked sensitive information to a patentee's competitors, or about bribery in connection with patent grants. Under such circumstances I would actually support the use of covert surveillance (I'm all for law and order and not really a privacy activist, to be honest). But the request that the "data protection officer" (who is more than 25 years late to serve as a Stasi official) authorized merely refers to freedom-of-speech issues: "a sustained campaign of defamatory and insulting communications against [the EPO's Jack Warner], other senior managers of the Office and possibly Administrative Council Delegates, in the form of normal post and electronic mail."

I also have my doubts that the communications in question were "defamatory and insulting" in light of the aforementioned Croatian court ruling. It's fairly possible that some people just said what one would be allowed to say anywhere except under a lawless regime backed by government officials who are far more interested in getting a well-paid job at the EPO than in supervising its management.

The EPO's lawlessness knows no limits. It would have been unacceptable to use keyloggers and cameras for covert surveillance of people's workplaces, but as the approved request states, "[t]he workstations in question [...] are located in public or semi-public areas of one Office building in Munich."

Here's the complete document with certain passages marked up in red:

EPO 'Data Protection Officer' Authorizing Surveillance by Florian Mueller

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EPO president reportedly threatened to resign; Dutch diplomat concedes concern over bad press

Today's EPO staff demonstration in Munich (see my previous post) turned out a lot more interesting than expected.

An estimated 700 protesters marched from one of the EPO's Munich buildings (the closest one to the Oktoberfest venue, for those who may have visited Munich on that occasion) to the Dutch consulate-general:

There was one sign that I particularly liked:

It's unfortunately true that the EPO, claiming immunity, behaves like an enclave that doesn't have to respect European/EU human rights and labor law standards. I don't think the EU institutions can turn a blind eye to this situation. Before the EPO starts granting EU-wide unitary patents, it must at least meet a certain European minimum standard in terms of checks and balances as well as access to justice.

After a 15-minute walk, the protesters arrived at the Dutch consulate-general. They were greeted by the consul-general himself, Mr. Peter Vermeij, who was an EPO vice president (in charge of patent administration and other areas of operational support) from 2007 to 2012. I took this picture of Mr. Vermeij adressing the SUEPO crowd (with the microphone):

Mr. Vermeij acknowledged that the ongoing labor conflict at the EPO and the bad press it has already resulted in have (among others) the member states of the European Patent Organisation concerned. He said that the EPO should usually just go about its work and there should be no noise about it. This official concession of concern over negative publicity was interesting.

Mr. Vermeij invited a few staff representatives to his office to discuss the Dutch government's position (also on the human rights issues on which a Dutch court had sided with SUEPO) in private.

Toward the end of the demonstration, a staff representative said, citing a reliable but unnamed source, that a majority of the EPOrg's member states (at a Council meeting last month) was in favor of appointing an independent mediator to help resolve the sitation but EPO president Benoît Battistelli was adamantly opposed to this idea and threatened with his resignation for the event that mediation would have been imposed on him. The crowd ironically cheered.

As I've said several times before, the EPO has structural governance issues that must be addressed, though Mr. Battistelli's leadership style is certainly unpopular with staff. While I don't think Mr. Battistelli's resignation would in and of itself represent a solution, I also don't feel he's unreplaceable. The Administrative Council should have decided to take the mediation route anyway and should simply have accepted his resignation.

The EPO is clearly in crisis.

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