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01.05.18

The EPO’s Attack on the Boards of Appeal Dooms the Unitary Patent (UPC) and Team UPC Alters Its Tactics

Posted in Europe, Patents at 7:18 am by Dr. Roy Schestowitz

Ad hominem tactics are now permitted as well? Has it really come to this?

Ad hominem

Summary: The crisis of the Battistelli regime means that credibility of patent justice is significantly lowered and Team UPC finds itself scrambling for ways to salvage what’s left of the UPC (even if that means mocking the complainants)

THE EPO had a slow start this year. There’s not much report, but there is still plenty to analyse.

Yesterday we found this puff piece about the EPO. “According to a recent study published by the European Patent Office (EPO),” it said, “Europe is the leader within the 4th Industrial Revolution (4IR) technologies industry.”

“What has the EPO turned into? Where is it going?”It makes the EPO sound so benign if not helpful. Well, the EPO was retweering this the following day (this morning); maybe they participated in “placing” it in the media. We have written a great deal about how the EPO handles the media and we are certain that many of these 4IR puff pieces were created in cooperation/participation/coordination with the EPO.

Anything else in the news about the EPO? No. We’re checking these things very closely.

“Experienced examiners and patent attorneys will tutor you throughout the Oral Proceedings workshop,” the EPO wrote yesterday. “Experienced examiners are becoming fewer at EPO,” I told them. The EPO suffers extraordinary brain drain which insiders are telling us about, citing clear evidence. The EPO is unable to recruit talent.

“We will soon close the call for applications for the Judicial internships at the Boards of Appeal,” the EPO also wrote yesterday. “For the Boards of Appeal to actually start functioning,” I responded, “they need not burden of tutoring interns but full-time staff.”

“The bottom line is, the UPC may be in fatal trouble here; what happened to Corcoran is quite likely the very last straw.”This has been said repeatedly over the years, not just here but also the likes of AMBA etc.

What has the EPO turned into? Where is it going? Can it be salvaged? We hope so. And so do insiders.

There is this ongoing conversation about whether members of the Boards of Appeal can deliver a testimony. The latest twist is this:

The Service regulation have changed extensively since June 2017 but the version published on the Internet is still the old one from March 2017.

Article 19 now reads:

“Article 19 – Discretion
(1) A permanent employee or former employee shall exercise the utmost discretion with regard to all facts and information coming to his knowledge in the course of or in connection with his employment.
(2) A permanent employee or former employee shall not, without permission from the President of the Office, disclose, on any grounds whatever, information which has come to his knowledge in the course of or in connection with the performance of his duties and which has not already been made public.
(3) Paragraph 2 shall also apply in legal proceedings. In this case, permission may be refused only where the interests of the Organisation or of a Contracting State so require. It may not, however, be refused if, in the opinion of the court, this would be likely to lead to a miscarriage of justice.
(4) Paragraph 2 shall not apply to an employee or former employee giving evidence before the Administrative Tribunal of the International Labour Organization in a case concerning an employee or former employee of the Office.”

An explanation is then given of why ILO is of relevance here (the EPC notwithstanding, as that too is relevant):

So let me see if I understand this correctly.

The Service Regulations allow the President to cite vague (and ill-defined reasons) for denying his permission for a (former) to provide evidence before a court of law. (Presumably such decisions can be challenged … but only before the ILO AT.)

On the other hand the President is completely unable to deny permission in connection with the provision of evidence to the ILO AT.

Is that correct?

What could possibly be the basis for this difference? I would have thought that it would make more sense for the Regulations to instead rely upon the provisions of national laws for establishing an appropriate balance between the interests of confidentiality and those of justice.

More importantly, what basis in the EPC is there for applying non-disclosure obligations to all “information which has come to his knowledge in the course of or in connection with the performance of his duties and which has not already been made public”? Article 12 of the EPC only indicates that there is a duty not to disclose “information which by its nature is a professional secret”.

For members of the Boards of Appeal to comment upon the issue of their independence, the only “non-public” information that they would be imparting is the manner in which, in practice, the EPO implements the provisions of the EPC (and the Service Regulations, etc.) vis-à-vis the members of the Boards. Is it really credible for anyone to assert that this information would amount to a “professional secret” in the sense of Article 12 EPC? I think not!

The latest on this says:

The article is rather odd and may need a lawyer to dissect. The “on any grounds whatever” sounds rather desperate and child-like in trying to enforce what I imagine may be unenforceable. It would appear that the administration is trying to extend immunity to encompass a self-defined exclusivity.
Paragraph 3 raises an issue beyond my knowledge as to what the term “likely to lead to a miscarriage of justice” means in terms of being a court’s opinion. Surely that can only be assessed after a court case or in full knowledge of all facts. During a case a party will not be able to present their best case unless the court considers a miscarriage of justice will otherwise occur? When is a different decision a miscarriage?
Paragraph 4 doesnot say any case before the ILO but limits it to one involving an employee or former employee. Why the condition? And when did the ILO-AT last take evidence anyway – they seem to religiously refuse to hear witnesses.

Another newer comment said that “it would be interesting that a party demands that Mr Corcoran testifies in front of the BVefG” (which can stop the UPC).

it would be interesting that a party demands that Mr Corcoran testifies in front of the BVefG and presents the court with the concrete example of his own case: eg how he was treated all along: how he was denied the rigth to access documents charging him, how he was denied the right to be heared, how he was not re-instated in DG3 further than the few remaining days of his mandate in 2017 (out of which close to 3 years were lost due to an abusive and vexatious suspension), and then brought back to DG1 under Battistelli’s hierarchical supervision.

This would surely give the Court a smashing insight into a concrete case and it could thus help the BVefG to establish beyond doubt how really “independent” the BoA of the EPO are.

And wait for Battistelli to become the first French President of the UPC Court in Paris soon (the UPC treaty foresees that its first President will be a FR citizen and he is said to want to go for it).

you liked the DG3 saga ? No doubt you will love the independence of the UPC Court under Battistelli !

The bottom line is, the UPC may be in fatal trouble here; what happened to Corcoran is quite likely the very last straw.

We have meanwhile noticed that CIPA’s Stephen Jones leaves IP Kat. Good riddance? He was mostly pushing CIPA's agenda (like UPC) in that blog. “We also thank and say goodbye to Stephen Jones,” they said, “a very experienced IP lawyer and current President of CIPA.”

“UPC lobbying does not strictly depend on Kluwer Patent Blog, where much of this lobbying gets delivered by Bristows staff.”It’s going to be easier to view IP Kat not as a front for CIPA even though their most prolific writer remains an employee of Bristows. Sadly, one of the better writers in there is also leaving, albeit just temporarily. “Nicola Searle will be on sabbatical from The IPKat for the next few months,” it says. We’re not against IP Kat but against particular elements of it; IP Kat is a mixture of many writers from many backgrounds, covering different topics. Their coverage regarding UPC, for instance, has always been appalling and they delete comments that they don’t like (or that Bristows doesn’t like). The same has been happening at Kluwer Patent Blog (Bristows deleting comments about the UPC there). And speaking of which, Kluwer Patent Blog was dead again yesterday. It happened a lot lately, sometimes for as long as a whole day. Lots of UPC lobbying over there became inaccessible. Kluwer Patent Blog was still down when we checked last night. People noticed. “Kluwer down again,” wrote one reader, “apparently since this morning.” I wrote about that twice yesterday and someone also left a comment here to say: “Worlds best IP blog seems to be hacked? Nearly everywhere I get: ¨ Error establishing a database connection¨” (there were other error messages later in the day).

UPC lobbying does not strictly depend on Kluwer Patent Blog, where much of this lobbying gets delivered by Bristows staff. Yesterday we saw Managing IP speaking of “potential timeline for Germany ratifying the UPC” as if it’s only a matter of time. That won’t happen. Self-fulfilling prophecy attempts by Team UPC again? Here is the full paragraph:

Topics discussed at our recent European Patent Forum USA included the potential timeline for Germany ratifying the UPC, FRAND after Unwired Planet v Huawei, the patentability of computer-implemented inventions at the EPO, patent enforcement strategies in Europe and hot tubbing of experts in the UK

Don’t forget that IAM, supported explicitly by the EPO, received money from the EPO’s PR department/external agency to set up a similar event in the US, dedicated purely to UPC lobbying/promotion. It was grotesque. And speaking of IAM, watch what they published yesterday: “The second five IP personalitirs of 2017 named by IAM – Patel, Qualcomm, Shore, Stjerna and Xi.”

Ingve Björn Stjerna, who exposed the UPC for the undemocratic sham that it was, is among “The IAM IP personalities of 2017″ (many of the other top personalities are patent trolls, like we said yesterday). To quote the article:

Ingve Björn STJERNA – As a new year begins, the future of the Unified Patent Court (UPC) remains up in the air; not because of Brexit but due to a complaint currently before the German Constitutional Court asking it to rule that the country’s ratification of the UPC agreement would be illegal. The case was brought by IP lawyer Ingve Björn Stjerna, a long-time critic of the UPC, and has a number of strands – including alleged flaws in the vote to ratify taken in the German parliament and concerns over the independence of the UPC and its judges. In April 2017, it caused the constitutional court to ask Germany’s president to suspend implementation of ratification. Then, later in the year, it requested that interested parties should submit comments – so delaying consideration of the arguments. If the court now decides that the case should proceed it is likely that it will not be heard until the summer, at the earliest, with a decision not to be expected until months later. That would effectively torpedo the UPC in its current form, as even a ruling that membership of the system is compatible with the German constitution is unlikely to leave time for the country to ratify the agreement before the UK leaves the EU in March 2019 (currently, UPC member states also have to be EU member states). One man can move a mountain, so the saying goes: in 2018, Stjerna could well prove this to be true.

Very gentle on the UPC there, IAM. As one might expect. IAM has, over the years, been an integral part of the UPC lobby or “Team UPC” as we often call that lobby. It even spread false information in order to promote the UPC and compel readers to go along with it.

“IAM has, over the years, been an integral part of the UPC lobby or “Team UPC” as we often call that lobby. It even spread false information in order to promote the UPC and compel readers to go along with it.”And speaking of Team UPC, this week (yesterday) it kept lying about what Britain wants. In order to promote litigation it cited this front group and then said (courtesy pf Edward Nodder) that “UK IP organisations request government action on IP (including the UPC) in light of Brexit”

In the same vein, makers of cluster bombs want endless wars and makers of particular vaccinations sometimes want particular diseases to spread.

It wasn’t enough for Bristows; on the same day it used this slant about France as if UPC acceptance in France is a new thing. France has already been in it for years; it’s one of the first, being the home country of Battistelli and Barnier, both of whom pushed incredibly hard for the UPC. Bristows did the the same for Belgium (also not new), but the Unitary Patent is dead due to Germany and the UK, not France or Belgium. The dishonesty of Bristows is noteworthy, but it’s no longer surprising.

“In the same vein, makers of cluster bombs want endless wars and makers of particular vaccinations sometimes want particular diseases to spread.”Speaking of British boosters of the UPC (law firms, obviously), watch this new rant from Team UPC. It seeks to prop up a smear or promote a false moral equivalence; it’s almost ad hominem, trying to frame Dr. Stjerna as a hypocrite, as if complaining about the UPC is as bad as the UPC itself. No wonder Stjerna did not want his name known…

Here is what the UPC booster wrote: “While I’m thinking about the topic of the UPC 3rd-party submissions, I continue to be astonished that the grounds for the constitutional complaint at #BVerfG haven’t been made public [...] I know summaries have been published by (e.g.) @KluwerBlogger but it seems absurd that we have to rely on third-party summaries rather than seeing the complaint “in the flesh” [...] In the UK it’s a relatively simple matter for non-parties to court proceedings to get hold of statements of case. It seems perverse that something which is allegedly of fundamental constitutional significance in Germany, and thus a matter of public interest, should be kept secret [...] I also note heavy irony in that Stjerna – having long criticised lawmakers for alleged lack of transparency in negotiations & discussions behind the framing of the UPCA and unitary patent regulations – is apparently upset about the publication of details of his case (see image!)”

“The dishonesty of Bristows is noteworthy, but it’s no longer surprising.”So I decided to reply, but did not (obviously) managed to convince those dyed-in-the-wool UPC folks (who are paid not not understand why UPC is wrong). The reply: “[] Wrong, Roy. Try reading the thread again. I take no position on the validity of the complaint – how can I, when I’ve not seen it? That’s the point. It’s a matter of considerable public and legal interest, and therefore I’m astonished that it’s not been published [] “Compare and contrast: the grounds for the “Miller” Article 50 case were online and available for scrutiny by the public, as they should have been – and even if they hadn’t have been published, members of the UK public can easily obtain court documents [] Whereas in Germany, an allegation of a *breach of the German constitution* is kept private despite the clearly fundamental significance [] This seems odd, to put it mildly. As I noted previously, it’s also rather ironic that Mr Stjerna has (in my opinion, correctly) criticised lawmakers for a lack of transparency in the proceedings leading up to the UPC legislation… [] …and yet he has refused to publicly confirm that he is the author of the complaint and apparently he’s upset that outline details of it have been made available.”

“Maybe they anticipate that the response will be UPC tribalism,” I told him. He responded: “If by “UPC tribalism” you mean “reporting on facts in plain view”… as I say, I take no position on the complaint, but it is surely in the public interest for it to be made available for analysis both by supporters *and* by critics.”

“Having seen the antics of Team UPC for nearly a decade,” I told him, “I can relate to the low-profile complaint…”

“It should be noted that many members of Team UPC now post anonymous blog posts (we are guessing, based on numerous things in their text, that those are Bristows staff).”He just laughed it off: “LOL. “Low profile”? He has literally appealed to the highest constitutional authority in the country. If that’s low-profile, I’m a banana. [] Transparency cuts both ways. I know you’re a vocal critic of the secrecy of EPO and UPC discussions – and I’m all for transparency too. Do you only dislike secrecy when it suits your ends to do so?”

So what they basically wanted is the ability to scrutinise the complaint and person (complainant). Because they operate very much like some sects or cults. “I wouldn’t have done this like that,” I told him (keeping the complaint sealed), “but I can understand why he did.”

It should be noted that many members of Team UPC now post anonymous blog posts (we are guessing, based on numerous things in their text, that those are Bristows staff). So they want to push the UPC agenda with the mask of anonymity. Hypocrisy knows no bounds. For the record, I always posted under my name (my real name) and letters that I sent I always made publicly accessible. In contrast to the UPC gravy train…

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