11.23.19

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German Constitutional Court Attempts to Distance Itself From Prof. Huber’s ‘Interview’ With Team UPC

Posted in Europe, Interview, Patents at 1:07 pm by Dr. Roy Schestowitz

A possible ethical violation akin to what Randall Rader had done before his career as a judge ended

CAFC corruption

Summary: Critical comments continue to be published regarding Justice Huber’s decision to speak to a mouthpiece of Team UPC about an ongoing case of financial interest to Team UPC

THIRTEEN years ago we barely wrote about the EPO because we thought that the European patent system was reasonably OK and the main problem was the USPTO granting loads of software patents for CAFC (or the above chief judge) to accept. It was CAFC that brought software patents into existence in the first place (decades prior).

Alice/35 U.S.C. § 101 changed a lot, as was the departure of the disgraced Randall Rader (full name Randall Ray Rader, close to Watchtroll and other patent maximalists, even lobbyists). He is in many ways as immoral as the career-climbing António Campinos and sociopath Battistelli. They not only accepted software patents “as such”; they came up with new buzzwords by which to celebrate these.

“It’s all about money, not justice or truth or science or whatever.”We’re now in situation where Europe’s largest patent office grants loads of Invalid Patents (IPs) — patents that have no chance in European courts. The EPO hoped to replace those courts with something that turns such slim chances into presumption of guilt/validity/infringement. It’s all about money, not justice or truth or science or whatever.

Sadly, based on a recent paper, the European Parliament is in the pockets of Team UPC. As Benjamin Henrion noted: “UPC will raise the cost for SMEs, as it is based on the case of parallel litigation over 3 countries https://patentstrategy.managingip.com/Articles/143 #upc #uk The JURIO report commissioned by the European Parliament does not even talk about the problems raised in other countries, like CZ, HU, BE, DE.”

“What was he thinking? Whose idea was it?”And Spain also; very large country. So what we need right now is a proper, legitimate, objective and independent court to step in and explain why the UPC is inherently unconstitutional (for a number of different reasons). Germany is the largest economy that can do this and there’s an impending case on the matter.

Sadly, to our surprise (and other people’s surprise as well), a judge from such a court blew it all. What was he thinking? Whose idea was it? Managing [to Lie] IP did an ‘interview’ with this judge and even the word “bullshit” was used by this judge, who added a sort of self-imposed deadline on himself and his colleagues. Shouldn’t a decision be released when it’s ready and when the time is right? It oughtn’t be rushed and details about the case oughtn’t be divulged, either. That’s just common practice. It seems totally inappropriate — as even patent people agree — for the judge to speak to media, especially media which is so blatantly a megaphone for Team UPC (with stake in the outcome of this case). We’re still seeing new comments on the matter, for example:

“I guess he wanted to say that internal UK politics is no concern of his, his concern being exclusively the DE Constitution and EU law.”

So why did he give his “exclusive” interview to a UK-based IP “penny dreadful” rather than something homegrown and more serious like JUVE ?

There’s nowt as quare as volk …

“Old Shatterhand” wrote:

According to information released by the author it looks that the FCC press spokesman arranged Prof. Huber’s interview with this London lawyer press outlet and that it was conducted on the phone and in English language. As this is indeed an unprecedented move, is there probably more behind this?

If there is one general judicial rule without an exception, it is that judges do not speak to the press about pending proceedings. All the more, why should a German court deem it necessary to address an English publication and one from which it cannot truly expect unbiased reporting? This has been done for a reason. Is the court so fed up with being molested by certain circles trying to influence its decision and apparently even putting pressure on it? Huber’s words pretty much sound like it. Was this unusual step taken to send these circles a message and do so through a channel which the court can assume to reach most of them, trying to put an end to their lobbying activities?

I would not be surprised if there was more to this than meets the eye.

“MaxDrei” said that ‘Prince’ “Andrew thought it a bright idea, to give a press interview. This equally cunning Baldrick-ian plan at the FCC looks to me just as misguided as Andrew’s. From the FCC, I expect better.”

We’re gratified to see that almost every commenter, except some in Team UPC, agrees with our initial reaction. This interview was a mistake and whatever the outcome of the case, people might go back to this incident, using it as evidence of impartiality lacking or lobbying having an effect.

Here’s the full comment:

Thank you Shatter for your surmises. Could it really be though, that the FCC is such a delicate flower, that it finds lobbying from interested parties so intolerable?

If so, I have some advice for the precious FCC PR officer. He or she should think herself lucky they aren’t a politician offering themself for election, and being on the receiving end of Twitter storms including plausible threats of murder. This is a serious threat to the future of representative democracy. If you have a family, do you not these days seriously hesitate before offering yourself for election, and then decide not to do it? Perhaps the precious judges could think a bit about that, and the need to give meaningful protection to those standing for election.

Compared with that, a bit of heckling (about the UPC, of all things) is totally harmless.

Andrew thought it a bright idea, to give a press interview. This equally cunning Baldrick-ian plan at the FCC looks to me just as misguided as Andrew’s. From the FCC, I expect better.

But let’s look on the bright side. Perhaps they are neophytes at PR, and will learn something from the experience.

There has also been discussion about this in social control media. One UPC booster said: “At outset, it should be recalled that, irrespective of the contents, the decision will be rendered by a body of judges (chamber of Senate). Obviously, as reporting judge, ProfH, would have substantial clout in shaping the opinion of that body, however. I understand that [] the answers were given in English (astonishing as it may seem re: “bullshit”). Quote1: “It is quite a detailed process that we follow because we have to look at every detail of how we formulate and word the [ruling].” “But it is likely that we will get along with it.””

Way to discredit the FCC. An own goal.

The lobbying group Managing [to Lie] IP proceeded to pushing some more UPC propaganda, this time in longer form. It starts like this: “Attorneys say ambiguity persists after a European Parliament report said UK membership of the UPC is a legal possibility after Brexit if the EU’s highest court maintains some jurisdiction over patent law”

“There’s no UPC,” I responded to them, “there are many remaining barriers to it, yet here you are pretending that the sole question is UK participation.”

“Way to discredit the FCC. An own goal.”IAM envied. “MIP got a great UPC scoop,” it wrote. “They would never, under any circumstances, make quotes or stories up. It’s not what any of us do. In our market, it would be ruinous.”

But this is what IAM did numerous times (and even worse things). Funny to see IAM speaking about journalistic morality. IAM also tweeted [1, 2, 3]: “For all the renewed UPC talk, especially about UK participation, it’s worth remembering that the British government minister who announced the UK would ratify the agreement was Sam Gyimah, who subsequently left the Conservative Party over disagreements on Brexit policy … It is also worth remembering that Boris Johnson, who was then the Foreign Secretary, actually effected the ratification. But he has travelled a long way on Brexit since then and now favours a far more distant relationship with the EU than he once did … In short, despite UK ratification of the UPC an awful lot has changed politically since then. There is absolutely no guarantee that the UK would now choose to take part even if the CJEU said that it could and Germany’s Constitutional Court gave the agreement the green light.”

Later on IAM wrote an article outside the paywall about it: [via]

Our colleagues on MIP caused quite a stir earlier this week when they broke news that the German Constitutional Court could soon finally issue its long-anticipated ruling on the legality of Germany ratifying the Unified Patent Court agreement. Speaking exclusively to MIP’s Patrick Wingrove, Peter Huber – who is the judge rapporteur in the case – said that, depending on his fellow justices playing ball, his intention is that a decision will be handed down in the first few months of next year.

A lot of controversy was caused by a quote from Huber that rumours the case had been delayed by uncertainties over Brexit were “bullshit”. Although he is sad that the UK is leaving the EU, Huber stated, “we are a court that responds to the constitution and the law, and Brexit is of no concern to us.”

Doubts were cast on Twitter that a German judge would ever use such language in public and the story was labelled by some as “fake news”. However, the substance of the piece, as well as the fact that an interview did take place, were both subsequently corroborated by German publication Juve, so putting to bed any idea that it was not based on reality.

JUVE’s editor Mathieu Klos, who has contacts with the court (he did have some insider insights in the past), wrote: “Yesterday, GCC judge Peter Huber announced a judgment in the #UPC challenge for early 2020. It’s still uncertain whether the court will decide in time for the UK to participate in the new patent court. But the announcement has reanimated the UPC.”

A UPC booster, quoting Klos, added: “With the dust settling over fact that Prof. Huber did give @ManagingIP a phone interview, it may be worthwhile looking at the substance of the verbatim quotes (thread). I understand from @juveVerlag_MK that Prof. Huber did not and did not attempt to convey the Court´s view. [] Prof. Huber ManagingIP comments concerning his ambition to have the UPC constitutional complaint decided early 2020 confirmed by Court though labelled as his personal opinion and accompanied by caveats.”

“Notice how it was only Team UPC mouthpieces covering the words of the FCC’s judge, speaking about the UPC complaint.”The court has no control over its constituent justices? Makes one wonder.

So even the court now recognises that speaking to Team UPC for agenda-steering purposes wasn’t good for the reputation of the court,

We’ve so far seen articles about it in MIP, IAM, IP Kat, Kluwer, Bristows (they pushed this into media, possibly for a fee), putting worthless "tweets" aside. Notice how it was only Team UPC mouthpieces covering the words of the FCC’s judge, speaking about the UPC complaint. Nobody else in the media even touched it.

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