Bonum Certa Men Certa

Bavarian State Parliament Has Upcoming Debate About Issues Which Can Thwart UPC for Good

Bavarian State Parliament due to debate motion about the EPO Boards of Appeal

Bavarian State Parliament debate



Summary: An upcoming debate about Battistelli's attacks on the EPO Boards of Appeal will open an old can of worms, which serves to show why UPC is a non-starter

A preliminary discussion is scheduled to take place at the next sitting of the EU Affairs Committee of the Bavarian State Parliament at 12:30 on Tuesday 20 February 2018.



It is expected that the motion will then be forwarded for a debate before a plenary session of the Parliament some time within the next couple of weeks.

An image of the motion (in German) is shown above along with an English translation below.

Bavarian State Parliament

17th Parliamentary Term 06.02.2018 Printed matter 17/20577

Motion

Dr. Hubert Aiwanger, Florian Streibl, Prof. (Univ. Lima) Dr. Peter Bauer, Dr. Hans Jürgen Fahn, Thorsten Glauber, Eva Gottstein, Joachim Hanisch, Johann Häusler, Dr.. Leopold Herz, Nikolaus Kraus, Peter Meyer, Prof. Dr. Michael Piazolo, Bernhard Pohl, Gabi Schmidt, Dr. Karl Vetter, Jutta Widmann, Benno Zierer and parliamentary group (FREIE WÄHLER)

Safeguard the independence of the Boards of Appeal at the European Patent Office

The State Parliament wishes to adopt the following resolution:

The State Government [of Bavaria] is called upon to advocate at federal and European level the adoption of measures within the European Patent Office to safeguard the independence of the Boards of Appeal and thus to ensure effective legal protection.

Explanatory statement:

A number of documented incidents, as set out below, raise serious doubts about the independence of the Boards of Appeal of the European Patent Office (EPO). The apparent loss of legal certainty requires action as soon as possible.

1. On 6 December 2017, the Administrative Tribunal of the International Labour Organisation (ILOAT) ruled that a judge of the Boards of Appeal who had been unlawfully suspended was to be immediately reinstated in his official position, that the house ban imposed on him was to be lifted and that compensation for damages was to be paid (Judgments Nos. 3958 and 3960). In doing so, the ILOAT confirmed that the involvement of the EPO President was detrimental to the independence of the Boards of Appeal, because he had acted as both party and advisor to the Disciplinary Body for the EPO judges in internal disciplinary proceedings. This gives rise to the criticism that insufficient attention was paid to the separation of powers in this regard. After all a suspension by the Administrative Council can only be formally take place if the Enlarged Board of Appeal makes a proposal to that effect. At the time in question, however, after the Office Administration had made a written intervention in the ongoing proceedings, the judicial body refused to do so due to this interference and terminated the proceedings without a proposal. Even after the Geneva judgement of December 2017, the Administration initially refused the unlawfully suspended judge access to the EPO premises. Only after some delay did the President of the Boards of Appeal grant the right of entry but his competence was limited to announcing this for the premises in Haar. Ultimately, the unjustly suspended judge was prevented from exercising his - intrinsically independent - judicial position until the end of his term of office.

2. Leading lawyers, such as the former Federal Constitutional Court judge Prof. Dr. Siegfried Broß, have long questioned the independence of the Boards of Appeal. For example, in an interview with the specialist journal JUVE on 29 October 2015, he pointed out that the Boards of Appeal could not be recognised as having the character of a court of law quality, given that there was an obvious overlap in terms of staffing between the President of the Office and the supervision of the Boards of Appeal. In the meantime, a reform of the Boards of Appeal was initiated by the summer of 2016 which resulted in the spatial separation of the Boards of Appeal by moving to Haar at the end of 2017. However, there was no fundamental change to the administrative structure: the President remains the head of both the administration and the Boards of Appeal. In this way, he continues to have influence both in terms of staffing and resources.

3. At least partly due to this background, there are a number of constitutional complaints against decisions of the EPO pending before the Federal Constitutional Court (BVerfG) in which the legal structure of the proceedings before the Boards of Appeal is alleged to be unconstitutional (see the BVerfG's Annual Preview 2017): Az. 2 BvR 2480/10, Az. 2 BvR 421/13, Az. 2 BvR 756/16, Az. 2 BvR 786/16). Without trying to anticipate a final court decision at this juncture, it at least deserves to be noted that, for diverse reasons, several complainants have had serious reservations from a constitutional perspective about the rule-of-law conformity of the proceedings and have thus felt compelled to submit their concerns to the Federal Constitutional Court. Accordingly, this development provides additional confirmation of the findings set forth under 1 and 2. A particular highlight in this regard is the recent request by the Federal Constitutional Court to the German President not to sign off the implementing laws for the European Unitary Patent. This occurred against the background of a successful application for a temporary injunction (Case No. 2 BvR 739/17), which is likely to raise concerns about the rule of law in proceedings before the EPO. Finally, the question of the independence of the Boards of Appeal will also have a significant impact on the proposed Unitary Patent should the EPO be entrusted with the issuing of patents with unitary effect despite the existing deficiencies in the system of legal protection.

The aforementioned shortcomings in this area clearly create considerable uncertainty because, it is feared that both definitively rejected patent applications and finally revoked patents can no longer be examined by independent judges. Hence, important fundamental questions arise about the constitutional conformity of the appeal structures in the EPO. This is why the state government must take appropriate action at federal and European level so that the existing deficiencies in the system of legal protection are redressed and the prestige of this international organisation is not subject to further damage.



They hopefully understand the importance and urgency of this matter.

Recent Techrights' Posts

Comparing U.E.F.I. to B.I.O.S. (Bloat and Insecurity to K.I.S.S.)
By Sami Tikkanen
New 'Slides' From Stallman Support (stallmansupport.org) Site
"In celebration of RMS's birthday, we've been playing a bit. We extracted some quotes from the various articles, comments, letters, writings, etc. and put them in the form of a slideshow in the home page."
Thailand: GNU/Linux Up to 6% of Desktops/Laptops, According to statCounter
Desktop Operating System Market Share Thailand
António Campinos is Still 'The Fucking President' (in His Own Words) After a Fake 'Election' in 2022 (He Bribed All the Voters to Keep His Seat)
António Campinos and the Administrative Council, whose delegates he clearly bribed with EPO budget in exchange for votes
Adrian von Bidder, homeworking & Debian unexplained deaths
Reprinted with permission from Daniel Pocock
Sainsbury’s Epic Downtime Seems to be Microsoft's Fault and Might Even Constitute a Data Breach (Legal Liability)
one of Britain's largest groceries (and beyond) chains
 
People Don't Just Kill Themselves (Same for Other Animals)
And recent reports about Boeing whistleblower John Barnett
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, March 18, 2024
IRC logs for Monday, March 18, 2024
Suicide Cluster Cover-up tactics & Debian exposed
Reprinted with permission from Daniel Pocock
Gemini Links 19/03/2024: A Society That Lost Focus and Abandoning Social Control Media
Links for the day
Matthias Kirschner, FSFE: Plagiarism & Child labour in YH4F
Reprinted with permission from Daniel Pocock
Linux Foundation Boasting About Being Connected to Bill Gates
Examples of boasting about the association
Alexandre Oliva's Article on Monstering Cults
"I'm told an earlier draft version of this post got published elsewhere. Please consider this IMHO improved version instead."
[Meme] 'Russian' Elections in Munich (Bavaria, Germany)
fake elections
Sainsbury's to Techrights: Yes, Our Web Site Broke Down, But We Cannot Say Which Part or Why
Windows TCO?
Plagiarism: Axel Beckert (ETH Zurich) & Debian Developer list hacking
Reprinted with permission from Daniel Pocock
Links 18/03/2024: Putin Cements Power
Links for the day
Flashback 2003: Debian has always had a toxic culture
Reprinted with permission from Daniel Pocock
[Meme] You Know You're Winning the Argument When...
EPO management starts cursing at everybody (which is what's happening)
Catspaw With Attitude
The posts "they" complain about merely point out the facts about this harassment and doxing
'Clown Computing' Businesses Are Waning and the Same Will Happen to 'G.A.I.' Businesses (the 'Hey Hi' Fame)
decrease in "HEY HI" (AI) hype
Free Software Needs Watchdogs, Too
Gentle lapdogs prevent self-regulation and transparency
Matthias Kirschner, FSFE analogous to identity fraud
Reprinted with permission from Daniel Pocock
Gemini Links 18/03/2024: LLM Inference and Can We Survive Technology?
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, March 17, 2024
IRC logs for Sunday, March 17, 2024
Links 17/03/2024: Microsoft Windows Shoves Ads Into Third-Party Software, More Countries Explore TikTok Ban
Links for the day
Molly Russell suicide & Debian Frans Pop, Lucy Wayland, social media deaths
Reprinted with permission from Daniel Pocock
Our Plans for Spring
Later this year we turn 18 and a few months from now our IRC community turns 16
Open Invention Network (OIN) Fails to Explain If Linux is Safe From Microsoft's Software Patent Royalties (Charges)
Keith Bergelt has not replied to queries on this very important matter
RedHat.com, Brought to You by Microsoft Staff
This is totally normal, right?
USPTO Corruption: People Who Don't Use Microsoft Will Be Penalised ~$400 for Each Patent Filing
Not joking!
The Hobbyists of Mozilla, Where the CEO is a Bigger Liability Than All Liabilities Combined
the hobbyist in chief earns much more than colleagues, to say the least; the number quadrupled in a matter of years
Jim Zemlin Says Linux Foundation Should Combat Fraud Together With the Gates Foundation. Maybe They Should Start With Jim's Wife.
There's a class action lawsuit for securities fraud
Not About Linux at All!
nobody bothers with the site anymore; it's marketing, and now even Linux
Links 17/03/2024: Abuses Against Human Rights, Tesla Settlement (and Crash)
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, March 16, 2024
IRC logs for Saturday, March 16, 2024
Under Taliban, GNU/Linux Share Nearly Doubled in Afghanistan, Windows Sank From About 90% to 68.5%
Suffice to say, we're not meaning to imply Taliban is "good"
Debian aggression: woman asked about her profession
Reprinted with permission from Daniel Pocock
Gemini Links 17/03/2024: Winter Can't Hurt Us Anymore and Playstation Plus
Links for the day