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07.22.17

Lack of Independence of the Boards of Appeal at the European Patent Organisation (EPO) a Fatal Blow for the UPC

Posted in Europe, Patents at 3:16 am by Dr. Roy Schestowitz

Boards of Appeal

Summary: Issues associated with the EPC, namely the lack of separation of powers at the EPO, may mean that the UPC is merely a zombie waiting to accept its permanent death

According to this page from the EPO (apparently new): “Current planning is that the Boards of Appeal will start operations at their new building on: 2 October 2017.” That’s just a few days after Kongstad leaves. He has, to a large degree, been to blame for the loss of independence of the Boards of Appeal, having gone along with Battistelli.

“Not as handy as it is currently,” commented one legal firm, describing itself as a London/Cambridge-based “Internationally renowned firm of European and UK Patent, Trade Mark and Design attorneys with a highly experienced and friendly team.”

Managing IP, another British entity one might expect to be EPO-friendly, joked about “Reinforcing the @EPOorg Boards’ “independence”. Good to see they still have a canteen, though.”

It’s sarcasm of course. “And no room for the numbers of people or hearings needed to do the work,” said another person, “as I hear.”

So they can’t even do their job properly, as noted last year. The EPC looks shredded and miserable.

Where is Team UPC when all of this is happening? British elements of Team UPC are still ignoring what happened some days ago. It was major news, but they are still conveniently ignoring it, resorting to Estonia instead (no kidding!), as they have been doing since last month.

Won’t they ever admit that the UPC is in trouble both in Germany and the UK? All they have said about it so far was pure spin if not outright lies (we rebutted those).

The matter of fact is, the UPC (in its current form) won’t happen if Britain leaves the EU. Jones Day’s staff (Olga Bezzubova, Diana Leguizamón-Morales and John Podtetenieff) reposted a few days ago — again in a site for lawyers — concerns about this conformity step, as if the EPO obeying European authorities is somehow a bad thing.

At around the same time, just before the weekend, a site for UK lawyers cited The Register (a partner/sister site) in relation to the situation in Germany:

Last month it emerged that Germany’s Constitutional Court was considering whether legislation backed by the country’s parliament, which would give recognition to the jurisdiction of the UPC in Germany, is constitutional.

Details of who has raised the complaint and what the precise grounds for it have not yet been confirmed. However, patent law specialist Marc L. Holtorf of Pinsent Masons, the law firm behind Out-Law.com, said two distinct rumours have been circulating as to the basis for the complaint.

Holtorf was commenting after The Register cited reports in Germany that have suggested concerns about the independence of the Board of Appeal at the European Patent Office (EPO) are behind the legal challenge. The concerns relate to the powers held by EPO president Benoit Battistelli and the extent to which those powers enable him to influence judicial appointments, according to the reports.

“A perceived lack of independence of judges could be an obstacle if Germany wants to transfer judicial power to such a court,” Holtorf said. However, he said a second “simpler” rumour as to the legal basis for the constitutional complaint had also emerged in the country.

In IP Kat comments, noting similar reporting in The Register and in German sites (“About the Unitary patent and the German Constitutional Court case”), people have written about the relation or correlation between the lack of independence and the status of the UPC:

Rumours emerge on basis for legal challenge against Unified Patent Court reforms in Germany

Alternative reports have emerged in Germany about what the basis for a legal challenge brought against legislation passed in Germany to ratify the planned new Unified Patent Court (UPC) system in Europe is, an expert has said.

https://www.out-law.com/en/articles/2017/july/rumours-emerge-on-basis-for-legal-challenge-against-unified-patent-court-reforms-in-germany/

So they’re finally getting it. Ever since Battistelli viciously attacked the boards (in 2014 it culminated in a “house ban”) things have gone very rogue both for Battistelli and his ‘baby’, the UPC.

We don’t expect any progress to be made on the UPC, not even after the summer.

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