11.29.15

Why the European Patent Office Cannot Really Sue and Why It’s All — More Likely Than Not — Just SLAPP

Posted in Europe, Patents at 12:19 pm by Dr. Roy Schestowitz

“A SLAPP is a lawsuit, filed for the improper purpose of trying to silence criticism, or to prevent someone from pursing their own right of redress. The typical SLAPP plaintiff does not care whether he wins the lawsuit, and often knows he has no chance of prevailing. The plaintiff’s goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. As a bonus, if the SLAPP plaintiff can garner notice in the media, or even among the defendant’s circle, a SLAPP suit may also intimidate others from participating in the debate.”

Aaron Morris

Summary: Legal analysis by various people explains why the EPO’s attack dogs are all bark but no bite when it comes to threats against publishers

THE EPO‘s dubious attack on our free speech appears to be a lot more dubious than people even care to recognise because they don’t know about the EPO’s immunity and impunity (it’s effectively above the law, but just conditionally). UK Defamation Law does not permit the EPO to do what it threatens to do. As some of our readers pointed out to us:

We saw the article about the EPO’s legal threat against you.

Here are a few comments off the top of our heads.

First of all we noticed that the article objected to contained a reference to Grant Philpott. The “edit” to the WIPR article involved removing Philpott’s name (as he was named in the original WIPR report).

For what it’s worth, Philpott is British and he used to be in the British Army (many years ago). This is no secret. We have no idea what significance if any this might have to anything or if it’s just coincidental. [...] However, we think that all of this may (hopefully) backfire on Battistelli and his crew. [...] Our understanding of the situation is that if the EPO does go to court it will have to lift its immunity. That could be quite dangerous for them.

You need to be aware of the Protocol on Privileges and Immunities (PPI) [...] look at the PPI in particular Article 20: “(1) The Organisation shall co-operate at all times with the competent authorities of the Contracting States in order to facilitate the proper administration of justice, to ensure the observance of police regulations and regulations concerning public health, labour inspection or other similar national legislation, and to prevent any abuse of the privileges, immunities and facilities provided for in this Protocol.

If the EPO decides to go to court, then it will be obliged under Article 20(1) PPI to “co-operate [...] with the competent authorities of the [U.K.] in order to facilitate the proper administration of justice [...] and to prevent any abuse of the privileges, immunities and facilities provided for in this Protocol.

On that basis, we suppose that you could lodge requests for discovery of documents etc. and that the EPO would have to comply if they want to pursue any action against you.

They shouldn’t be allowed to misuse a UK (or other national) court in an attempt to prosecute you while at the same time being allowed to hide behind their cloak of immunity. Refer to the legal principle of “equality of arms” which should apply in a UK court.

If the EPO tries to get “serious” about court proceedings, then maybe you can request that the court obtains a binding undertaking from the EPO that it waives its immunity from jurisdiction and execution for all matters relating to the case including any counter-claims that you may make against them.

This could be the biggest mistake that Battistelli has made so far.

By trying to muzzle free speech outside the EPO he is moving outside of his normal “comfort zone” where he gets to make and break the rules as he pleases. There is also a high probability that this attempt to take legal action against a “blogger” could attract a lot more “mainstream” interest in the whole affair (à la Streisand).

We are sceptical that Battistelli really wants to go before a national court with stuff like this. It sounds more like scare tactics – but maybe he is sufficiently bonkers to try it…

We will be following developments with close interest. [...] we are not experts in UK defamation law but we had a quick look at the Defamation Act of 2013 and we noticed a few things that might be relevant for your situation.

Under Section 1 of the Act, “harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.

The EPO is not a “body that trades for profit” so it is not covered by that Section to begin with. Anyway, it’s doubtful that they could show any “serious financial loss” from Techrights publications.

We also noted that according to the Wikipedia page relating to the Defamation act: “Non-natural persons performing a public function do not have an action in defamation against any statement concerning that function.”

If that interpretation of the law is correct – which it seems to be – then it’s difficult to see how the EPO could possibly have any success in trying to initiate a defamation action against Techrights in a UK court.

That’s just our opinion but hopefully lawyers can confirm.

“You might find this amusing,” they added later, “click on the photo of the author at the top of the article.” (posted by this person just one week after the threatening letters started to come)

One person asked us: “Can you tell me if [this person] is on the EPO staff or if they have engaged an outside firm? It might be worth investigating the nature of his previous practice record.”

“Hitherto, external entities have become richer thanks to undisclosed budget from a public purse.”Well, what’s perhaps troubling here is that private companies are again being used by the EPO. The EPO already has its own (in-house) lawyers. Hitherto, external entities have become richer thanks to undisclosed budget from a public purse.

The above isn’t out of the ordinary. We recently learned that WIPO too tried to silence a blog with legal threats. It happened some years ago. The blog received, according to what we learned, “a phonecall from one of the Deputy Directors-General followed by two legal letters before action, only to discover that, as a body established under an international convention, WIPO didn’t have the legal power to sue or be sued in any national court. This may be so for the EPO, one way or other.”

Well, apparently, based on what PatentBuddy wrote in Twitter last week, WIPO also threatened Gene Quinn (another blogger) in a similar way. It happened not too long ago. Why the overreach? Was this SLAPP as well?

“By this point, we have written nearly 400 articles about the EPO (we have focused on deeper affairs for over a year now).”Well, many states in the US have anti-SLAPP laws (not all states, but see for instance California SLAPP Law). There are also things like blogger protections (depending on definition of journalist, blogger, forum etc. with salaried/non-salaried being a factor). Why are public bodies taking the risk of trying to keep bloggers quiet? Can they not foresee backlash?

By this point, we have written nearly 400 articles about the EPO (we have focused on deeper affairs for over a year now). There seems to be serious institutional abuse there and in recent months the British media too started covering these matters (in big numbers, citing Techrights). Private Eye picked up this story and publicised the scandals (using evidence from Techrights). That’s why the EPO must be so worried. English-speaking media has very broad reach, unlike Croatian media for example. We therefore assume that they just try to intimidate or silence the site. Well, the site is already BLOCKED (for the first time in history) from within EPO offices. They clearly try to keep it quiet, to keep staff unaware of it, but the harder they try, the more sources (whistleblowers) turn to to the site with new and explosive leaks. We even got some more earlier today… we’re now drowning in material.

“This behaviour from the EPO is intended to discourage writing (they start by nitpicking on one article, only to try others later).”Based on the wrong name being in the legal letter (they address me by a completely wrong surname*), they’re on some kind of a new campaign to silence the media. I’m not the only target and I was warned about this recently. More people now come out (privately at least) and speak about growing pressure from the EPO (see what was posted here last month, there is a long history to it and the story of unitary-patent.eu may be one of very many). For reactionary leverage, some suppose, victims of EPO bullying could invoke the Streisand Effect and let people raise awareness of what EPO is attempting to do here. That kind of coverage would definitely annoy the majority of EPO workers (there are around 7,000 of them), and maybe lead to more effective and much broader a standoff/demonstration.

This behaviour from the EPO is intended to discourage writing (they start by nitpicking on one article, only to try others later). Based on the letters, this is action from the EPO itself, not an individual. SUEPO’s site was also recently silenced (back in September), probably using a similar kind of letter, maybe even from the same firm.

“There is an atmosphere of fear and terror at the EPO and we can’t help thinking of FIFA and Volkswagen for parallels.”We often wonder if, even after publication, a lot of publishers silently censor their articles (removing words or entire paragraphs) without us even noticing it. We started saving articles about the EPO for this reason (for later comparison, as recently shown here). Journalists and publishers are made afraid to the point where very serious violations can go on and on. People commit suicide and next month we are going to write about what motivates (at least some of) these suicides. We have more damning information about the EPO, but we keep it under the wraps because it’s so damning that it would put people’s careers at risk if published (the subject of the articles being at risk, not the sources). There is an atmosphere of fear and terror at the EPO and we can’t help thinking of FIFA and Volkswagen for parallels.
______
* Wrong name being addressed to indicates they may have reused a template, as they have been muzzling other people as well (this other name too is German and the EPO is based in Munich).

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