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07.06.18

Team UPC Suggested Changing Constitutions to Facilitate the Unconstitutional UPC. It Didn’t Go Well…

Posted in Europe, Patents at 1:21 am by Dr. Roy Schestowitz

These arrogant suggestions from Team UPC merely serve to discredit its psyche

An unconstitutional constitution? A comparative perspective
Reference: An unconstitutional constitution? A comparative perspective

Summary: With European constitutions under the microscope, it’s becoming clearer that the Unified Patent Court (UPC) is simply unconstitutional and needs to be buried; but spinners from Team UPC would have us believe that no such issues exist and UPC is just around the corner

Team UPC — like Team Battistelli (EPO leadership) — does not understand notions such as the “Rule of Law”. We already saw how it deals with constitutional challenges, either bullying courts or discrediting their discretion. With a 12 to 2 majority, Hungary decided that UPC is unconstitutional; other countries did not even check, albeit Germany is belatedly checking. As Benjamin Henrion (FFII) put it yesterday: “Let’s ask the French and UK courts if they agree with the Hungarian analysis then.” It’s still possible. It’s never too late. To us it has always been clear that UPC is unconstitutional virtually everywhere, not just Hungary and Germany. “If the Hungarian Constitutional Court is right,” Henrion added, “someone should file the same question in Court in UK and FR…”

Why not go further? Dozens of countries deserve a constitutional challenge (reality check). Remember what happened at 2 AM at night in Germany. It’s pretty incredible and it’s worthy of the term “political corruption”. Every nation deserves a good look at the machinations (Battistelli and his thugs, along with the likes of Bristows, pulling strings behind the scenes); UPC is dead enough as it is, but the public deserves an explanation for all that has happened.

“This is just one among many obstacles that Team UPC keeps trying to deny, belittle, or simply brush under some rug.”The UPC-sympathetic (based on past writings) Eibhlin Vardy is trying to make the UPC sound inevitable by echoing the usual two (now-infamous) lies which are repeated by Team UPC and Battistelli. From yesterday’s post by Vardy: “The Hungarian decision (unlike Brexit or the on-going German complaint) will not formally delay the entry into force of the UPCA, but it will most likely delay (or terminate) Hungary’s participation in the UPC system.”

No, no, no…

First of all, it’s not delay that’s at stake. Where does one begin tackling such loaded statements? And this isn’t about whether Hungary participates but whether the UPC ever exists at all. In any form. This is just one among many obstacles that Team UPC keeps trying to deny, belittle, or simply brush under some rug. It’s despicable and hard to even fathom the thought that some people pay a lot of money for these lawyers to give legal ‘advice’.

“Shows how bizarre it was that Brexit Britain ratified, in my humble opinion,” one commenter said. Most of the above is based on Peter Ling, who we suppose either understands Hungarian or was told something by someone (not a reliable translation). “In a 12 to 2 majority decision published on 29 June 2018,” it says, “the Constitutional Court answered this question in the negative. In short, the Court considered that the transfer, in the framework of an enhanced cooperation among EU Member States, of exclusive jurisdiction on certain civil lawsuits to an international institution not explicitly foreseen by the EU treaties, deprives such lawsuits from any constitutional review under the Fundamental Law and therefore is incompatible with the Fundamental Law. Although this may sound like a purely national constitutional issue without much specific relevance to the UPCA itself, some aspects of the Court’s reasoning point to issues that are potentially relevant beyond Hungary.”

For obvious reasons. And as usual, with IP Kat at least, comments nowadays are a lot better than posts (usually written by people with personal stakes in UPC). To quote an early comment:

(1) Isn’t the training centre for UPC judges located in Hungary? So its non-participation in the system would be an embarrassment to say the least.

(2) CIPA and others have proposed that the UPC Agreement should be amended to allow the continued participation of the UK as a non-EU state. That would surely confirm the view of the Hungarian court that the UPC Agreement is not EU law and make similar constitutional challenges more likely in other countries.

The next one connects this to EPO abuses/corruption:

Let us just step back for a minute and consider the possible implications of the constitutional deficits of the UPC. As I have previously commented elsewhere, a couple of thought experiments help to exemplify the magnitude of the deficits.

Firstly, what would happen if the President of the UPC (Court of Appeal) were to (attempt to) interfere with the independence of the judiciary of the UPC?

Secondly, what would happen if the President of the UPC were to pursue a vindictive campaign to remove an “irksome” judge of the UPC?

What could be done to prevent such troubling events from occurring, or to deal with them if they do occur? What recourse would the UPC judges have?

If the EPO is taken as an exemplar of an international organisation having a “judicial” function, the answer to all of the above questions is clearly “very little”.

Do the above-mentioned deficits therefore make the UPC an organisation that is particularly prone to “capture” by malicious actors? Compared to the status quo (where there are numerous national courts, each subject to and constrained by both national and EU laws), my view is that the answer to this question is a clear “yes”.

Personally, I believe that such questions ought to be given very serious consideration by the Participating Member States, and that amendments to constitutions (which is no small thing!) ought to only be contemplated if it can be concluded that the set-up of the UPC provides adequate safeguards, checks and balances.

“The solution to this is not that a dozen of countries amend their constitutions to include LESS judicial rights,” said the following comment.

Please also note that it was not so difficult to foresse that including exclusively domestic issues within the exclusive jurisdiction of the UPC could be a problem serious problem, unless UPC complies with the highest stardards regarding judicial, consititutional and HR guarantees. And it is clear that this is NOT the case.

To say the least: no instrument to referral/review to national Supreme Courts (while applying national law), no set of fundamental rights expressed in writing nor jurisdiction of any external court to review them, no ECHR review jurisdiction, no constitutional right is recognised, no judicial control of the UPC director, no labour rights for the workers of the UPC.

Of course potential claimants are very happy with this. But it is not only unfair: it is an extremely dangerous source of inestability which should be corrected BEFORE the UPC enters into force.

The solution to this is not that a dozen of countries amend their constitutions to include LESS judicial rights.

That last remark alludes to utterly ludicrous suggestions from Team UPC, which patently believes that it’s above the law.

And from another thread (about British law and the EPO):

I fear in the UK v EPO rivalry the EPO is dominant with the UK grudgingly following. I am sure the EPO will seldom pay any attention to UK decisions, and so in that sense it is more a Master-Slave dialectic (https://en.wikipedia.org/wiki/Master%E2%80%93slave_dialectic) or worse.

Whilst UK decisions are interestingly written, they have less and less influence in a world where rising to the top of one’s regional power block is more important than one’s ingenuity.

The EPO has an issue because lawlessness prevails there; do countries wish to hand over their legal sovereignty to an unaccountable and corrupt bureaucracy where lawlessness has become the norm? Where dissent is met with defamation, calling the dissenting voices “Nazis”?

“…Campinos reaffirms the widely-held belief (even inside the Office) that he’s just an “orange President” who ‘softens’ the image of Team Battistelli.”We have thus far seen absolutely nothing which suggests António Campinos will fix things. “Cooperation and dialogue” Kluwer Patent Blog said yesterday, quoting/citing some blog post from Campinos, who only a day earlier lobbied for the unconstitutional UPC, yielding a highly-misleading (i.e. the usual) press release from the EPO. To quote Kluwer Patent Blog:

After only four days in office, it is hard to tell whether Campinos will bring change at the EPO after the controversial years of Benoit Battistelli’s leadership, which led to enormous social problems. But his announcement that ‘staff engagement is among my top priorities’, and his personal message to all staff members certainly seem positive steps. A first real test will likely be his handling of the cases of three SUEPO leaders, whose dismissals and downgrading were reversed last week by the Administrative Tribunal of the ILO, as well as the case of the Irish judge Patrick Corcoran.

Striking is Campinos’ focus on effectiveness, rather than efficiency, which could be a sign that the new EPO president is aware of complaints from users that the enormous increase in productivity under Battistelli has led to a decline of, or threatens patent quality at the EPO.

Remarkable, furthermore, is that his predecessor isn’t mentioned in Campinos’ message. And an almost revolutionary change is at the bottom, contrary to the blogposts of Benoit Battistelli and perhaps the most significant sign of change: Campinos has apparently decided that his contributions will be open for comments.

Well, maybe with moderation enabled or maybe he doesn’t yet know how to use the CMS (unless someone does the posting on his behalf). Either way, the way things stand, Campinos has solved absolutely no issues in his first week in Office. If anything, contrary to what Kluwer Patent Blog wishes to believes, Campinos reaffirms the widely-held belief (even inside the Office) that he’s just an “orange President” who ‘softens’ the image of Team Battistelli.

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