04.28.16

If EPO “Form of Thinking Were to be Followed, Guantanamo on German Soil Would be Possible.”

Posted in Europe, Law, Patents at 8:11 am by Dr. Roy Schestowitz

Siegfried Broß (below) previously defended the defamed judge whom Battistelli suspended if not dismissed in spite of supposed independence

Image courtesy: campact.de

Summary: The EPO is still under fire, but a lot of it happens behind the scenes and involves lawyers and/or bureaucrats

The “EPO very silent at the moment,” one person told us yesterday, “what will be the next move? Be prepared!” Well, based on what we know, as few press reports already gradually reveal, there are lawsuits on their way. The defamed judge too seems to be among those who fight back against Caesar Battistelli, who obviously thinks he is above the law and openly brags about it.

“Not even police in Germany or Dutch special forces can go into EPO premises — as strange as it may sound.”Not much is publicly known about these lawsuits. We don’t know how many people are involved, how many people will be named as defendants, how many pertinent lawsuits there are and so on, but we assume that preparation for this is probably keeping SUEPO officials busy and we might soon know more about the basis of the complaints and who is being legally targeted, as the EPO itself is almost immune from lawsuits (my lawyer told me so after the EPO had SLAPPed me and some EPO applicants told me they wished to sue the EPO but didn’t know how because of its outrageous immunity). For instance, doing a search at the EPO (subpoena) requires prior permission from management. Not even police in Germany or Dutch special forces can go into EPO premises — as strange as it may sound. Not even embassies enjoy the same protections which Team Battistelli now flagrantly abuses. The EPO is like Camp X-Ray and suicides oughtn’t be much of a surprise. There is some resemblance to be found there to the UN or WIPO, which is connected to the UN, mostly because it’s chaotic in the legal sense (there are virtually no legal protections for workers).

As this new article from IP Watch puts it this week (yesterday): “To date, there is no consolidated reference text on WIPO’s governance” (and in the EPO there are special rules that are kept secret as they override national/international laws).

“Here we have again, as was the case two months ago, Siegfried Broß comparing the EPO’s legal status to that of Guantánamo Bay.”In his latest blog post, Battistelli, who tried to work for WIPO (he lost to Gurry), cites the WIPO in an effort to gain some legitimacy. It comes amid relative calm, even though Bavarian/German press evidently continues to cover the situation at the EPO (direct link to the video). Moreover, SUEPO has just prepared a translation of “Patentamtsstreit beschäftigt auch Audi”, which it says was published “only in paper version.” Here we have again, as was the case two months ago, Siegfried Broß comparing the EPO’s legal status to that of Guantánamo Bay. It alludes to some of the aforementioned points.

DONAUKURIER 20 APRIL 2016

FORMER CONSTITUTIONAL JUDGE SIEGFRIED BROSS ON THE EPO

Mr. Bross, over the past few months the EPO has been hitting the headlines with a large number of labour law disputes. You are seen as a major critic of the organization. Why is that?

Siegfried Bross: The EPO is the central authority for the protection of patents in Europe. However, it suffers from an underlying flaw in its structure, which slipped in when it was established. It is a creation of a combination of states, and its immunity was recognized. That in itself is in principle not a problem, but within the EPO an
entirely autonomous legal system has been created, which is not based on any effective system of checks and balances.

What does that signify?

Bross: The Patent Office is detached from national systems of law. That has two consequences which are not acceptable in the context of a state governed by law: On the one hand, as can be seen at the present time, there is no legal protection for the workforce. On the other, there is no legal protection either for patent applicants. There are only the Boards of Appeal at the EPO, which are both officials and judges in one, and which, moreover, are subordinate to the President. Anyone who comes to grief there has no further recourse. Nor is the Office subject to any parliamentary monitoring or control.

How could the constitutional arrangements be structured so as to avoid such problems?

Bross: Either a new court would have to be established inside the Patent Organization, which would be independent of the President, or the legal protection would have to be assigned to one of the states where it has a domicile, such as Germany.

In your view, then, the structure as it exists up to now is not reconcilable with applicable law?

Bross: It contravenes the European Convention on Human Rights, because the 38 Member States cannot ensure the status of a state governed by law. It is a basic principle of human rights that states cannot rescind their responsibility to uphold human rights. This means that the organization should never have been established in
the way it was. The combining of administrative and legislative power in one entity is unacceptable. The position of the President contradicts all basic principles of the democratic state governed by law, and the EPO has by now essentially gained autonomy. I have repeatedly said, if this form of thinking were to be followed, Guantanamo on German soil would be possible.

In the attempt to make the Office more efficient, have the states lost sight of the clients and the staff?

Bross: The focus on cutting costs and higher yield from fees have nothing to do with the task of the EPO. The procedures of issuing patents, the aim of which is the protection of intellectual property, are an absolutely inviolable right for the economy. It is a fundamental task of the patent authority to ensure that there are sufficient personnel available for the thorough examination of patents.

Siegfried Bross was a judge at the Federal Constitutional Court from 1998 to 2010. The interview was conducted by Daniel Wenisch. Archive photo: Deck/dpa

As noted in about a dozen recent daily links in Techrights, lawsuits over torture at Guantánamo Bay have just been given the go-ahead (rather unprecedented a development). The people behind torture techniques may be dragged into court. Let’s hope the same happens to the EPO’s management.

“Just watch what monsters Raimund Lutz, for instance, has come to serve.”Working for the EPO as a legal personality (at any capacity) does not legitimise one’s career or improves one’s credibility at this point (unless one is past retirement age, in which case it hardly matters, as is the case for Battistelli and Minnoye). Just watch what monsters Raimund Lutz, for instance, has come to serve. Don’t worry, he’s paid well for this. According to this news update, Justice Arnold too joins the team (probably tempted by big money and power), albeit he’ll be serving the Enlarged Board of Appeal, which is no friend of Battistelli (recall this letter). As IP Kat put it yesterday: “First, the IPKat learned from CIPA that Mr Justice Arnold has been appointed to the Enlarged Board of Appeal of the European Patent Office. The IPKat understands that he is to replace Lord Justice Floyd, who has been the UK external member of the Enlarged Board for some years. One or two external members of the Enlarged Board are included in the panel in cases where there is a referral to the Enlarged Board by an EPO Board of Appeal or the EPO President, and the scope of the matter extends beyond the internal administration of the EPO. Such cases are relatively rare (single numbers per year) and there are over 20 external members, the IPKat does not imagine that Mr Justice Arnold will be having to jet over to Munich very frequently.”

“The next few weeks may be interesting when it comes to the EPO.”In other news, MIP continues writing about the UPC as though it’s definitely coming, irrespective of all the barriers. To quote the summary: “How might a clearing-the-way case proceed once the UPC is in force? In the latest article in our series, David Rose, Nina O’Sullivan and Axel Walz consider the options for a patent challenger who wishes to launch a competing product” (there are already scenarios for this in the existing system, so the UPC solves a problem which does not at all exist, unless you’re a multinational company that’s not even European).

The next few weeks may be interesting when it comes to the EPO. We have mostly omitted all the “Inventor” propaganda which comes out of the EPO these days, even urging people to double-vote and calling in "media partners" like French papers (it’s the same one again) and hoping they won’t notice the poor record of finalists' selection. █

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