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11.29.15

How the EPO Twisted Defamation Law in a Failed Bid to Silence Techrights

Posted in Europe, Patents at 10:28 am by Dr. Roy Schestowitz

The European Patent Office (EPO) is strong-arming bloggers

Twisted fingers

Summary: Using external legal firms (not the EPO’s own lawyers), the EPO has been trying — and failing — to silence prominent critics

THE EPO‘s war on journalists has been covered here for almost a week. 5 days after WIPR broke the story it is still the most popular topic at that news site and this story has since then attracted wider and further media attention. There are 5 large threads in Reddit right now, in five different sections, posted by numerous individuals and groups we don’t know and aren’t typically focused on legal matters. This is going mainstream!

We are starting to find out some interesting things from interesting people. Another news site told us, “you are not the only person coming under pressure from the EPO right now.” It also prudently responded and advised us by saying “do assume, if you are not already, that your private e-correspondence is being monitored and read.” Recall the following older articles of ours:

This article will present my solicitor’s response to the EPO’s lawyers, who are actually — like much of the EPO's staff these days — from a private company that we won’t even mention. What the EPO has done here is amazing. It’s amazingly stupid. They took a crisis that mostly involved the ‘IP’ community into a mainstream audience. The EPO is now a laughing stock in many circles and emergency funds are now being retrieved from the taxpayers’ pot to hopelessly undo the damage (it will only backfire again, we can guarantee it).

“They took a crisis that mostly involved the ‘IP’ community into a mainstream audience.”As we know that not only Techrights was subjected to legal bullying by the EPO, we wish to make as much information as possible widely available. It can help any future victims of EPO bullying, as it includes legal material which shows how to respond to the EPO and call their bluff.

I spent 6 hours this morning going through piles of material. I was hoping to get a full E-mail trail (in and out, incoming and outgoing) suitably picked and redacted where required. It all started with a legal letter from a firm contracted by the EPO. Readers are advised to remember that we start this chronology a month and a half ago (15/10/2015 onwards), so some of the text below should be treated and read in contextual relation to the time and what was known back in October, well before additional information got leaked and covered on the Internet.

“The original/seminal nastrygram from the EPO was sent at 22:57 (local time) on Friday.”THREE LEGAL LETTERS have been sent by the EPO’s first law firm and another by the second one. We’re not talking about one legal letter here, contrary to some belief (as witnessed on the Web). Today’s publication of facts will be split into 3 PARTS in order to better organise the material and make it easier to cross-reference in the future.

The original/seminal nastrygram from the EPO was sent at 22:57 (local time) on Friday. It was sent not just to one E-mail address of mine but to several, saying: “Please see attached legal letter for your urgent attention.”

How the legal firm found several of my E-mail addresses is itself a bit of a mystery, but either way, these people were very eager to ensure that I read this mail late at night on a Friday. We won’t name the firm or the people who sent those letters. Also, as they demand confidentiality in all of their letters, we cannot or will not publish them. We won’t break the rules like the EPO so habitually does. We leave the dirty tricks to the EPO. We’re cleaner than them.

“We won’t break the rules like the EPO so habitually does.”Techrights wishes to thank David Allen Green (Preiskel & Co.) not just for doing a sterling job but also doing this out of goodwill. “I should be able to do this one pro bono,” he wrote to us at a very early stage, “still finding out.” David Allen Green was upset at the EPO’s behaviour and was immediately engaged in helping us, even on a weekend (remember that nastygram was sent late on a Friday night). David asked me for permission to respond to the lawyers and state that: 1. the letter sent was not in accordance with the pre-action protocol; 2. it is denied EPO has capability to sue; 3. the post was taken down without any admission of liability; 4. you require 14 days to provide a substantive response.

We ask dear readers to carefully consider the situation these people put me in late on a Friday night. It’s a kind of entrapment. If David Allen Green didn’t jump in as early as Saturday, the course of action from the EPO would probably have been more severe, not because it’s permissible but because they can exploit lack of awareness of the law, or even misrepresent the law (a familiar EPO trick). Here is the first response sent to the EPO’s contracted (external) lawyers, who seem to have sent similar nastygrams to other people.

Dear [Anonymised]

I have been approached by Roy Schestowitz in respect of your letter which was attached to the email below.

Your letter is remarkable. The letter does not accord with the relevant pre-action protocol. Indeed, it looks like that you are not even aware that there is a pre-action protocol.

But that is not the worst thing. The “urgent” letter was sent at 22:57 on a Friday, with a supposed deadline of noon the following Monday (that is, today). This is akin to simple legal bullying. It was clearly intended that Mr Schestowitz would be intimidated and be forced to act without proper access to legal advice.

It gets worse. Not only do you seem unaware of the pre-action protocol, you do appear to know that the Defamation Act 2013 is in force, which requires your clients to meet a test under section 1. You don’t even mention the appropriate statutory test, let alone attempt to show how your clients meet it.

And finally: the European Patent Office is a public body. Under the Derbyshire principle it would not be able to maintain an action in defamation.

I am currently putting the paperwork in place so that I can be formally instructed by Mr Schestowitz. As such this email is sent on his behalf but I anticipate to be formally acting for him very shortly. I am only writing now because of the misconceived deadline you selected.

It is not accepted that your letter is a valid letter of claim, and so my client’s position on this point is reserved. However, and without limitation to the foregoing sentence, you will now get a formal and substantive response to your letter within the 14 days set out in the protocol (that is, by 30 October 2015). In the meantime my client has taken the posts down without any admission of liability.

If your clients are daft and ill-advised enough to issue proceedings before receiving the formal and substantive response (and in breach of the protocol), I will advise my client to seek indemnity costs against your clients, in addition to his other rights and remedies.

My client’s position is reserved.

Yours sincerely

David Allen Green

The EPO’s goons then sent another nastygram. By that time, David Allen Green had already consulted specialists/domain experts, who brought up a legitimate point, so he responded as follows:

Thank you for this latest letter. I will take instructions.

In the meantime, I have now discovered the European Patent Office has no legal personality. If the EPO is not a legal person it cannot maintain an action in defamation or otherwise.

Can you please tell me exactly who your client is in respect of the threatened claim by EPO?

“They are becoming comical,” I said, at the very least “because yet another article which is factually correct they are trying to get removed now. Even large broadcasters serve to support my claim — hence they want to retaliate. They don’t like the bad publicity, which now [at that stage] reache[d] everyone in Munich.”

Remember that all of this was happening while the press was still hammering hard on the EPO for preferential treatment favouring large applicants. The EPO was hoping I would retract what I showed and perhaps help them censor the media (which was always linking to Techrights for evidence). Attempts to censor the original source of leaks or force a public apology/restraction is a classic censorship strategy. I just had to fight back.

Here is what my solicitor then wrote:

Dear [Anonymised]

We have read the second letter, and I am still taking instructions and will reply substantially by the stipulated deadline tomorrow.

In the meantime, however, note the following, including the renewed request for information.

So far: you have sent an initial letter which did not mention the relevant protocol, including making a threat on behalf of one named client (“EPO”) who cannot maintain an action in defamation (under the Derbyshire rule) and does not even have legal personality. You also forget to set out anything at all about the section 1 test in the initial letter.

With respect, you do not seem to actually know what you are doing. It looks like you are dabbling in defamation law. You are making basic errors almost every paragraph.

You have now – desperately – come up with “malicious falsehood” and “confidentiality” – but you do not set out the bases of your claims in respect of either claim. You should have realised the significance of the Derbyshire rule before you sent your threatening letter. But you failed to do so, and now you are now threatening actions in “malicious falsehood” and “confidentiality” without even providing basic information about how you clients make out the elements of either cause of action. It just looks ridiculous.

I asked you earlier today at 10:40 (below) to set out who your “EPO” client was; and despite the supposed “urgency” I have not had a reply, some five hours later.

Please respond by 1700 today stating which legal person your “EPO” client actually is. Otherwise I will assume you actually do not know.

Yours helpfully

David Allen Green

A later letter stated:

Dear [Anonymised]

Further to the below, this is the response to your second letter (of today’s date).

There is nothing whatsoever in the second letter to justify a deadline of tomorrow. So your client(s) can wait until the letter we are sending to you on or before 30 October 2015, in which we will deal substantially with both letters.

You said this morning this matter was “urgent”. I immediately sent you a straightforward query about the identity of one of your named clients, who is not even a legal person. Despite the purported “urgency” neither of you have bothered to respond at all, in over six hours.

In the interests of keeping costs proportionate, I do not propose to correspond further with you on either of the letters sent until the substantive response on or before 30 October 2015.

For completeness, and also in the interests of inter partes co-operation to control costs, I can tell you that my client reserves his right to plead a defence of truth to the claims, and this means that any pre-trial injunction you might seek would not be granted, pursuant to the rule in Bonnard v Perryman [1891] 2 Ch 269.

And, as I set out in the email below, if your clients are daft and ill-advised enough to issue proceedings before receiving the formal and substantive response (and in breach of the protocol), I will advise my client to seek indemnity costs against your clients, in addition to his other rights and remedies.

Yours sincerely

David Allen Green

Without much regard to the part about “keeping costs proportionate”, the EPO continued rather than relented with legal letters. Another one “came in on Friday,” my solicitor told me, “just an attempt to recover on the “no legal personality” point.”

Finally, here is the detailed letter sent to summarise all the points, including some of the above:

Dear [Anonymised]

I refer to my email below. I have looked at your letters carefully, and I have also discussed the contents with specialist counsel.

As you are both aware, the purpose and intention of the pre-action protocol is to facilitate the early exchange of information, so that cases can be properly dealt with. Accordingly, I am writing this email so as to obtain additional information which we require to consider your claim.

1. Legal personality

In respect of the European Patent Office, I am still not clear as to which legal person is seeking to threaten and maintain an action in defamation. In your first letter you said you were acting for the European Patent Office. Now you are saying you are acting for the European Patent Organisation. (It is just as well they have the same initials!) But the position of the European Patent Organisation is not what you set out in your initial letters, and now the position is confused and nees further clarification, as I set out below.

2. EPO Immunity from suit, from and costs and disclosure orders

Is your “EPO” client (whoever it is) formally waiving its legal immunity to countersuit and, more importantly, to liability for any costs and disclosure (and other) orders? Are you even aware that your EPO client’s immunity from suit (and to comply with costs and final orders) is at stake here? The position on your “EPO” client’s immunity from costs orders needs to be clarified as a matter of urgency, as it affects the costs sanctions and disclosure regime.

3. Derbyshire

In any case, the Derbyshire rule provides a complete defence to any claim your EPO client can bring.

If your “EPO” client is daft enough to put this trite proposition to the test, then I will seek indemnity costs from your client from the moment this obvious truth was pointed out to them. You say (in your 20 October 2015 letter) that you “reserve” your position on Derbyshire, as if some magical proposition will somehow appear which allows you to get around it. You will not get round it; your “EPO” client simply cannot maintain an action in defamation, as a matter of public policy.

4. Meanings

In respect of alleged meanings, it is currently impossible to work out your clients’ respective positions. This is for two reasons.

First, as mentioned above, your letter of claim does not mention the European Patent Organisation, and nor do the words complained of. You need to set out how my client’s words refer or relate to an organization which is not named by him, and how you say the words complained of apply to the European Patent Organisation. There is an “identification” issue which you simply have not addressed.

Second, your letters do not separate out the potential claimants, and indeed your inconsistent use of the apostrophe when mention your clients’ (or client’s) makes it impossible for us (and the court) to work out which of your clients you are talking about at different parts of your letters. Perhaps you did not know; but this needs to be clear at the earliest possible stage.

5. Libel bullying and the public interest

Without limitation to any of the above, there remains the horrible and discrediting issue of libel bullying. Here I want to raise the issue of the public interest. The work of the EPO is a matter of legitimate public concern. There is, as your client knows, a significant public debate as to the work of the EPO; a debate to which the EPO is itself contributing, and which is taking The effect of sending libel threats such as yours will be to inhibit that debate.

This is plain in your demands that entire articles be taken down, rather than just the words complained of. This cannot be justified. In essence this appears to be an exercise by a public body to discourage public criticism.

6. Further information now required

In essence, before we can properly reply to any threat that either of your clients may wish to bring, we now need the following information:

a. Separate letters before action for each client in respect of defamation, separating out their respective alleged meanings and words complained of;

b. An explanation as to why the EPO is not covered by the Derbyshire rule;

c. Confirmation that your EPO client is waiving immunity from countersuit, and waiving immunity in respect of compliance with costs and disclosure orders and final orders (together with an executed legal instrument by the President of the European Patent Organisation confirming this formal waiver);

d. A separate explanation in respect of each client of how that client meets the section 1 test in respect of defamation;

e. An explanation as to why your clients were demanding entire articles should be brought down rather than just the words complained of, and how this does not constitute “libel bullying”.

Please provide this information within seven days, by 6 November 2015, so that the aims of the protocol can be achieved.

7. Next steps

Once we have the information requested, and subject to what it says, we can then in turn set out the relevant defences under sections 2, 3 and 4 of the Defamation Act 2013. Facts will be defended as facts; honest opinions will be defended as honest opinions; and a public interest defence will also be set out. My client intends to defend his words on the bases available to him under the Defamation Act 2013.

So that the protocol will be complied with, I would then provide the defence(s) to you within 14 days of your provision of the information requested above, that is by 20 November 2015. In the event that your clients issue proceedings immaturely, and before 20 November 2015, your clients are put on notice of the costs consequences. I am acting within the scope and spirit of the protocol so as to resolve this at pre-action stage, and so should your clients.

If you do not provide the requested information by 6 November 2015, then we will regard the matter as having come to a close.

My client’s position is reserved.

Your sincerely

David Allen Green

In the next couple of parts we intend to show where things stand. It looks as though the EPO ran away with its tail between its legs. We thank David Allen Green (of Preiskel & Co.) for that.

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