04.02.19

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EPO Judges Lack Independence and the Internal Courts Are Seen to be Lacking Legitimacy (Decisions’ Validity) Under António Campinos

Posted in Europe, Law, Patents at 7:40 am by Dr. Roy Schestowitz

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Summary: ‘Club Med’ is still intimidating judges at the EPO; this means that under the current management no sense of law, order and justice can ever be assured, only pretense thereof

THE European Patent Office (EPO) has a toxic legacy, a criminal legacy, or a “difficult legacy” as JUVE has just put it. It’s a legacy of corruption. Profound corruption. We haven’t even stopped covering the corruption associated with Topić, who left the Office a few months ago.

One reader asked us, “do you recognise this man?”

Several readers have told us about it. We will say more on him later. It’s Topić’s latest venture in Zagreb. There’s some criminal stuff going on (lawsuits and investigations), so maybe he just wants to come across as “professional”. Is this thug from the EPO trying to turn connections into “bizniz”?

One reader spoke of “any resemblance with” Topić, noting the above Web site. We’ll have more to say about it soon (many of the relevant articles are in east European languages). Topić snubbed and dodged courts for about a decade, refusing to even attend after he had been summoned. He misused EPO immunity and was a living example of the EPO’s attitude towards courts and judges.

“Collective punishment or simply a threat to all judges?”António Campinos may have sent Topić away, but he replaced him and others with former colleagues, including his boss. Authored by Mathieu Klos of JUVE Patent nearly a month ago and cited by SUEPO yesterday (very belatedly) is this report about Battistelli’s legacy of injustice. He did endless damage to the EPO’s integrity and reputation; Campinos repaired nothing at all and judgments from courts inside the EPO (Organisation) can no longer be trusted. Klos says that “the move” to Haar is viewed by judges “as a disciplinary action by Battistelli.”

Collective punishment or simply a threat to all judges? Here are some portions from the article:

In the summer of 2016, controversial former EPO president Benoît Battistelli, along with the organisation’s 38 member states, decided to largely separate the Boards of Appeal from the EPO. This was due to strong criticism from the European patent community that the court was no longer independent, or immune of influence, from the EPO president – important, given that the Boards of Appeal review decisions made at the EPO.

As a result, since 2016 the Boards of Appeal has been run by its own president, who exercises a high degree of self-administration

And at the end of 2017, as part of the new measures the court and its employees moved to Haar from the EPO main building in Munich. In many public commentaries, and in interviews with JUVE Patent, employees of the Boards of Appeal saw the move as a disciplinary action by Battistelli.

However, now the Enlarged Board of Appeal has the power to review this measure. Within the context of Articles 6 and 15 of the European Patent Convention, a new the question has arisen. Does Haar belong to Munich or not?

[...]

The case which has led to such far-reaching consequences is just one of many in IPCom’s patent processes, to force the mobile industry to take a licence on the NPE’s patents.

In 2008, for example, the NPE of Munich-based patent attorney Bernhard Frohwitter engaged Nokia in a large series of disputes. In the following years, IPCom also filed disputes against Deutsche Telekom and Vodafone, among others.

This decision, which concerns a notorious patent troll, may affect a lot of ongoing cases/referrals, as Klos points out in his article. Will that also include the big decisions on software patents (simulation) and patents covering plants, seeds and animals (life/nature)?

Rose Hughes has just published “BREAKING: President to refer the patentability of plants produced by essentially biological processes to the EBA”; well, it’s hardly “breaking” (almost 5 days old) and we wrote about it several times before.

Campinos, aided by the supine Council (formerly led by the person Campinos now bosses), is just looking for ways to dodge prior decisions and make it seem like a lawful process. This is the same EBA that his appointer, corrupt Battistelli, sent to exile in Haar. They know what Campinos wants them to say. They were previously reprimanded repeatedly by Battistelli and Kongstad (his “chinchilla), so what impartiality can be expected?

According to Article 112 EPC, the President of the EPO may refer a point of law to the EBA, in order to ensure uniform application of the law, or if a point of law of fundamental importance arises,”where two Boards of Appeal have given different decisions on that question”.

Unless this Kat has missed something, there have not been conflicting decision from the TBAs on the issue of the products produced by essentially biological processes since the issue was determined in G 2/12 (Broccoli/Tomato II). So on what grounds could the issue be referred by the President?

[...]

It is also noted that the EBA has form in finding referrals by the President as inadmissible in the absence of conflicting decisions from the Boards of Appeal (e.g. G 3/95). The case law therefore suggests that any referral by the President, citing legal developments such as statements from the European Commission, is unlikely to be accepted by the EBA. In fact, it seems highly probable that the EBA will consider the issue to have already been fully decided in G 2/12 (Broccoli/Tomato II).

None-the-less, the President’s proposal apparently “received broad and overwhelming support from almost all Contracting States”. The President’s thus plans to “proceed swiftly to submit the referral”.

The general consensus is that this is an outrage which reflects badly on the Council, too. To our surprise, even patent maximalists aren’t happy. Here’s CIPA on R27/28 Biotech (“CIPA Position Paper on the Patenting of Plants in Europe”) [PDF]. “CIPA’s position is that the above-mentioned conflict (between judicial interpretations of the EPC and Rule 28(2) EPC) should be solved in a lawful manner,” it concludes. Remember that CIPA is a loud proponent of UPC and it has done photo ops with corrupt Battistelli.

At the end of the day we remain stuck with a court that cannot do its job because of institutional corruption at the Office — corruption that has already spread to the Council as well. Are appeals independently ruled on? How about oppositions?

“A three-member panel of the European Patent Office’s (EPO) Opposition Division upheld patent EP 2,949,335,” The Pharma Letter wrote yesterday. To quote just the headline (it’s paywalled with free signup):

EPO upholds patent on Copaxone 40mg

Would there be potential consequences (to one’s job) in case of rejection? Those should be legitimate questions…

The EPC is no longer respected by the EPO. It’s not hard to see that. The Boards (appeal boards) have pointed this out for half a decade (since 2014 when Judge Corcoran, their colleague, came under attack). Yet Meissner Bolte’s Jasper Werhahn does not seem to fully understand that (EPO has already abandoned and abolished the EPC — its founding document).

EPO is a wholly and entirely rogue institution that robs Europe to enrich a few executives at the top.

We’ve sadly come to a point where neither the UPC nor the Boards can serve justice. One was supposed to substitute the other, but as things stand the EPO is superseding the law anyway. There’s no sense of justice or even mere order. We’ve meanwhile taken note of this new blurb from De Berti Jacchia Franchini Forlani Studio Legale’s Giulia Beneduci. “Unitary Patent Package” is not “implemented” as she claims because UPC is dead. It’s the same propaganda line Bristows used last month. Intentionally misleading framing that involves Italy…

What would work towards fixing the EPO? For a start, all management needs to be flushed down (too much nepotism up there at the top), the Boards need to be brought back to Munich, and their fear from this clannish EPO management obliterated for good. Otherwise, all we have is musical chairs, swapping positions on the deck of the Titanic.

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