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10.24.17

Freedom of Expression is Dying Not Only at the EPO But Also Outside the EPO (Media Coverage of the EPO)

Posted in Europe, Patents at 7:29 am by Dr. Roy Schestowitz

On censorship

Summary: An epidemic of censorship around the Unitary Patent (UPC) and the European Patent Office (EPO) belatedly receives a lot more attention

THE situation is quite extraordinary. As a free speech advocate myself (we never deleted any comments in this blog; we received about 35,000 comments, including extremely rude ones) the situation at the EPO fascinates me. Responding to Thorsten Bausch’s latest blog post we see someone saying: “No wonder so many folks in Germany are so frustrated, and vote for the AfD. This is not good! Herr Maas (SPD), Herr Ernst, readers, take note…”

Maas and Ernst both actively suppress discussion about these matters. It’s not helping.

A few hours ago Bausch himself responded to the latest comment:

I have no own insights of what happened at IPKat, and my only comment is that there could be many (also purely technical) reasons why the commentaries on this particular blog were deleted, so I will abstain from any speculation.

As readers of this blog know, I believe in and honor the right of free speech and encourage readers to engage in a civilized critical dialogue about matters of common interest. It goes without saying that such a civilized critical dialogue should neither include insulting or denigrating other people or institutions, nor suppressing critical, but well-substantiated opinions by others. The Kantian “golden rule” applies everywhere.

Bausch is a doctor and probably lacks the incentive to become a censor. Based on what Bausch has written, he’s a man of integrity. To suggest the censorship is due to some technical issue, however, is far too optimistic and even unrealistic. The IP Kat blog has a long history of censorship (several times against me too) and we have plenty of examples documented. As the next comment (reply to Bausch) points out:

Dear Concerned Observer,

you will have noticed by now that certain people are giving their best trying to influence or ‘guide’ public opinion on topics like the EPO or the UPC in a direction suiting their interest. It is no coincidence that minions of them have assumed (or have been installed in) key positions at key IP blogs. I would encourage any commentator to take a screenshot of his/her comment before submission and make it public should publication not occur within a reasonable time. The mere number of reported incidents would quickly show whether we are talking about technical glitches or something else.

Our friends at the Ministry of Truth are fighting windmills!

Yes, “Ministry of Truth” indeed, like in 1984

The blog Thorsten Bausch writes for already got caught censoring comments critical of the UPC (Bristows apparently did that censorship). As that blog is also one of the loudest proponents of the UPC (just look who’s behind the blog, including Wolters Kluwer itself), this was probably “convenient” to censor.

The above mentions attempts to manipulate (e.g. by censorship) public debate about the UPC. We have documented plenty of that over the years.

Regarding a subject which we covered before, namely the forever-postponement of the UPC, the Law Society Gazette’s Max Walters wrote the following article:

The long-drawn out process of setting up a unified patent regime for Europe has hit a new delay, with the German Constitutional Court extending its deadline for comments about the credibility of a legal challenge.

The Bundesverfassungsgericht (BVerfG) said today it will accept submissions until 31 December instead of 31 October – meaning no decision on whether to hear the case will be made until at least next year. As a result, German ratification of the underlying treaty is on hold.

The challenge, filed by Düsseldorf intellectual property attorney Ingve Stjerna, questions the constitutionality of the German legislation enabling ratification. A spokesperson for the court told the Gazette the challenge ‘claims a violation of the limits deriving from the right to democracy with respect to the transfer of sovereign powers.’

They keep using that word, “delay”, insinuating that the UPC is somehow inevitable and just a “matter of time”. That too is a famous lie.

We are deeply concerned about the EPO bribing the media, threatening the media, and even interjecting lies into the media. Such behaviour only gives rise to radical political leanings.

Apropos, SUEPO has just published this post about the Parliamentary Assembly of the Council of Europe (PACE). So PACE isn’t just a secret, discriminatory program that EPO used to undermine the integrity of the patent examination process (before saving face and saying this was available to everyone, only after a lot of European media had chastised the EPO for it).

Here is what SUEPO writes today:

See below the provisional version of report of the Committee on Legal Affairs and Human Rights (Title: Jurisdictional immunity of international organisations and rights of their staff)

PACE’s call for stronger protection for rights of staff in international organisations, read here.

Many mentions of the European Patent Office in the adopted report which can be accessed here

We are making a local copy [PDF] of the English version in case the original vanishes some time in the near future (less than a decade).

Here are the parts about the EPO:

18. At the December 2016 hearing, Ms Zegveld, who has advised SUEPO – the staff union of the European Patent Office (EPO) for several years, hoped to see a change in the case law of the Dutch courts following the SUEPO and Others v. the European Patent Office case. This case concerned the right of access to legal redress of SUEPO and other EPO staff unions. SUEPO is an external staff union with local unions in the countries where the EPO has its offices, in particular in Germany and the Netherlands. Today, almost half of EPO staff (3400 out of 7,000 staff members, 2,500 of whom work in the Netherlands) are members of SUEPO. As the EPO did not recognise this union and refused to deal with it in any way, the union brought the case to the Dutch courts. In a judgment of 17 February 2015, the Hague Appeal Court confirmed the judgment of the court of first instance, which had lifted the EPO’s jurisdictional immunity and ruled that SUEPO and the other staff unions had no means of protecting their rights under the Convention, because there were no internal remedies and the fact that they could not appeal to the Administrative Tribunal of the International Labour Organisation, which has jurisdiction regarding labour disputes involving EPO staff. The Appeal Court found a violation of the freedom of association and the lack of any means of redress within the EPO. Subsequently, the EPO refused to implement the Appeal Court’s ruling and had submitted an appeal on points of law to the Dutch Supreme Court. The latter delivered its judgment on 20 January 2017 and set aside the judgments of the Appeal Court and the court of first instance, ruling that the Dutch courts had no jurisdiction to deal with cases referred by the unions against the EPO. There was no justification for waiving immunity as it could not be concluded that the protection of fundamental rights within the EPO was deficient. There was a guarantee of access to a tribunal, as union members, in an individual capacity, could appeal to the EPO’s internal bodies and to the ILOAT.

A little later it’s mentioned again:

24. More recently, in January 2015, the Court confirmed its previous case law and dismissed the applications lodged in respect of two employment disputes with IOs in the aforementioned Pérez v. Germany and Klausecker v. Germany cases. In the first case, a former staff member of the UN complained, on the one hand, about the allegedly deficient procedures before the UN internal appeal bodies and the UNAT concerning the termination of her service, and on the other, about the lack of access to German courts because of UN jurisdictional immunity. The Court rejected both complaints for non-exhaustion of domestic remedies, stating that the applicant should have first lodged a complaint before the Federal Constitutional Court (however, concerning the first complaint, the Court considered that the issue of “equivalent protection” offered by the UN could be questioned in the circumstances of this case). In the second case, the applicant, a candidate for a position in the European Patent Office (EPO), was eventually rejected by the EPO because of his disability and complained about the lack of access to a tribunal in relation with the procedures he had instituted before the German courts (the Federal Constitutional Court, which declared his complaint inadmissible, confirmed that EPO enjoyed immunity from the jurisdiction of the German courts) as well as those instituted before the EPO’s bodies and the Administrative Tribunal of the ILO. Concerning the first set of proceedings, the Court referred to Beer and Regan v. Germany and Waite and Kennedy v. Germany and noted that the applicant had “reasonable alternative means” to protect his rights under the Convention, as the EPO had offered him an arbitration procedure. Concerning the proceedings before the EPO and ILOAT, the Court reiterated the principles stemming from the Bosphorus and Gasparini cases, and found that, in view of the said arbitration offer, the protection of fundamental rights within the EPO was not “manifestly deficient” and rejected the application as manifestly ill-founded.

Then again:

25. In order to have a brief overview of employment dispute systems in the various IOs (which will, however, be necessarily incomplete given the number of IOs and the constraints of this report), I shall look more closely at the systems in the United Nations (UN), the World Bank, the ILO, the European Union (EU), the EPO and the six co-ordinated organisations, which are the Organisation for Economic Co-operation and Development (OECD), NATO, the ESA, the European Centre for Medium-Range Weather Forecasts (ECMWF), the European Organisation for the Exploitation of Meteorological Satellites (EUMETSAT) and the Council of Europe. I shall look at the different bodies (judicial and quasi-judicial) with which complaints from the staff of these organisations are lodged and then the status of these bodies (can they be considered courts?) and whether or not there is an appeal court.

26. Before initiating proceedings before an internal court (or “quasi-court”), staff are obliged to exhaust all administrative remedies, by filing an administrative complaint before the administrative body which has issued the impugned decision. At the UN, this is a request for a management evaluation submitted to the Secretary General (see Rule 11.2 of the Staff Regulations), at the EU, a complaint submitted to the appointing authority (see Article 90.2 of the Staff Regulations of Officials of the European Communities), at the World Bank and the ILO, every internal means of redress available within the Organisation (see Article II.2 of the Statute of the World Bank Administrative Tribunal and Article VII.1 of the ILOAT Statute). The Service Regulations of the EPO provide that the staff member concerned must first submit a request for review before lodging an internal appeal to the Appeals Committee; once the latter has issued its decision, a complaint may then be filed with the ILOAT (see Articles 109 -113 of the Service Regulations).

The closing part is focused primarily on EPO and SUEPO:

44. Even though the legal arguments for maintaining the jurisdictional immunity of IOs remain solid and this system works relatively well in practice, the case of the unions at the EPO – recounted by Ms Zegveld at the December 2016 hearing – shows that this immunity can be abused in the event of poor management and internal conflicts within an IO. Following the case brought by SUEPO and the other unions before the Dutch courts, EPO management had started a campaign against members of SUEPO; some of them had been dismissed or suspended, or their salaries or pensions had been cut. As the EPO is subject to no public scrutiny, its Administrative Council, the organisation’s supervisory body, has done nothing to prevent unfair disciplinary proceedings and internal investigations. As a result, the activities of IOs, which often lie beyond the democratic scrutiny of national parliaments and the media, should be more transparent and monitored more closely by states, which are held responsible for the abuses taking place in these organisations. This case also shows the importance of upholding freedom of association in cases of disputes with employers, especially if the employer is an IO, and the need for trade unions to have access to all available means of
redress.

We don’t know if the authorities in Europe are going to do anything effective to stop the tide of tyranny at the EPO, but we certainly hope so.

The EPO uses an aggressive legal firm, Mishcon de Reya, to silence media/blogs (or scare them). We kindly ask readers to report to us comments/posts about EPO when/if they’re vanishing. Some do. Mishcon de Reya helps Battistelli suppress the truth; Mishcon de Reya has itself plenty to hide, including reports about its former staff engaging in massive fraud.

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