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03.19.20

Germany’s FCC and Its Decision on UPC May Not Matter Much Anymore (and the Government in Berlin Knows That) (Updated)

Posted in Courtroom, Europe, Patents at 3:22 pm by Dr. Roy Schestowitz

Update (20/3/2020): The decision is now online in German and in English. Thank you, Justice Huber, for doing the right thing in the face of great pressure if not harassment from the litigation ‘industry’.

Tomorrow morning we’ll know the (in some sense) irrelevant outcome

UPC lobbying budget:
UPC lobbying budget - Can't say if dead or dead - It's dead, Jim - I need to change profession

Summary: Tomorrow morning the Federal Constitutional Court in Germany (Bundesverfassungsgericht) will publish a decision that leaves UPC as dead as it already is, based on last month’s declaration from the British government (among other key factors)

THREE years ago the corruption in EPOnia was still making headlines across Europe. It was only a year or two after the corruption had been culminating in all sorts of ways. We can count the ways, enumerating literally dozens of examples. We’ve written and published over 3,500 articles about the EPO alone.

“Anyway, legal issues aside, the EPO also fails on technical merits.”The EPO has not changed since; but it made use of some new PR strategy and put aside budget and lawyers for intimidation and bribery of the press. At one point it even sanctioned IP Kat (back when it was still run by decent people — sadly no longer the case due to staffing/editorial changes). IP Kat nowadays participates in the EPO’s abuses by means of censorship of EPO critics. It’s really that bad and rather blatant. They hope nobody will notice that, but people do notice…

Anyway, legal issues aside, the EPO also fails on technical merits. The official European Patent Office/Organisation’s (EPO) Web site suffered downtime issues this week (the U.S. Patent and Trademark Office (USPTO) had similar issues last year and two years ago — issues that some blamed on corruption, nepotism and incompetence. This week one USPTO whistleblower wrote: “Rec 100s complaints about the new CIO leadership. The CIO seems to be every where but at work. I guess the contractors are running the place. The Dep CIO is still failing as a leader, transferring old staff over to CIO to achieve even greater failure that got her trasferred”).

“Will they be OK with the EPO trying to seize control of the legal system too? Not likely. Not if they do their job properly.”We don’t wish to focus too much on the USPTO and every pertinent EPO abuse, including the corruption of the media, the bribery, the fake job ads and so on. Let’s just say that the Justices at the FCC are certainly aware of many of these things. They’ve had years to familiarise themselves, as they’re dealing with numerous (perhaps half a dozen) complaints about the Office. They’ve been observing the abuses against EPO judges, not to mention all sorts of corruption such as nepotism (the legal system is extremely sensitive to such bad publicity).

Will they be OK with the EPO trying to seize control of the legal system too? Not likely. Not if they do their job properly.

One can count on the overzealous among Team UPC to act as though the UPC is about to start. Bristows’ Gregory Bacon (some of his UPC boosting colleagues left the firm) said some nonsense and around the same time “Kluwer Patent blogger” (probably the same firm hiding itself and suppressing its opposition, as usual) wrote: “”We await to see what the significance might be that the decision will be issued by the Senate rather than Chambers”, Bristows writes in an article published earlier today.”

Citing oneself, Bristows?

Anyway, one big blow was served last Friday but was "lost in Corona" (“Dutch Court Rules That Seat Agreement Signed Between the EPO and the Dutch Government Violates Article 45 TFEU”), so will this Friday bring another blow?

“This UPC decision may be already moot,” I told Henrion (FFII) some hours ago, “because the UK is not participating in the process, which means UPCA cannot go on (as Berlin confirmed months ago)” (this is a matter of public record in newspapers as well).

“I personally do not share this kind of enthusiasm because the UPC is already dead anyway.”The court says: “Generally, this information will be announced three days prior to publication. On the day of their respective publication, the decisions will normally be available on the website of the Federal Constitutional Court as of 9:30 a.m. and are sent via newsletter simultaneously.”

That’s 8:30 AM British time.

Citing Stjerna's latest paper, Henrion noted that “Nokia and BASF [are] writing UPC court fees so that SMEs cannot participate” and added that: “If the FCC dismiss the complaint on Friday, FFII eV will file a second one. [] If the German Constitutional Court kills the Unitary Patent on Friday, I will do a virtual party on Jitsi. Bring something to drink!”

I personally do not share this kind of enthusiasm because the UPC is already dead anyway. “There are strong grounds to throw out the UPCA, not the complaints, for good,” I told him. “It’s the product of a litigation ‘industry’ coup, designed to corrupt the system and break the underlying laws for profit. Unitary Patent already died last month here in the UK. Another German nail in the French coffin would help thwart future attempts by ‘Team UPC’.”

“They look to discredit the decision in case it doesn’t go their way.”Henrion took note of “UPCtracker” Thomas Adam, who insults the court and the Justice. He wrote: “#UPC re: decision of DE Constitutional Ct to be published on Fr., March 20, 2020. Not an expert in constitutional procedural law, so following observations should be taken w a grain of salt. The form of announcement indicates that the decision will be one by the full Senate (8 judges) as compared to a 3-judges/chamber decision (the latter being competent to deny acceptance of the complaint, sec. 93b of the Act on the Fed. Constitutional Ct., but – of relevance here – not competent to declare an Act of parliament as unconstitutional; sec. 93c(1) 3rd sentence); a chamber decision wd have been surprising this late in the game but it appears that the case was never formally admitted by the Senate; having said that, a Verfassungsbeschwerde must be admitted in order to be decided, sec. 93a but can happen implicitly). In case of a draw (4:4), complaint is denied. Dispensing with oral hearing would be due to parties involved waiving such right, sec. 25(1). So form of decision (by way of “Beschluss”) not prejudicial for outcome. Dissenting opinions are possible.”

So they proactively moan about the decision. They look to discredit the decision in case it doesn’t go their way.

“In case the case is not refered [sic] to the CJEU,” Henrion told him, “FCC will breach its obligations.”

Separately he had said “UPC FCC decision to be published this Friday [...] If the court does not refer the matter to the CJEU, this will be a big fault by the FCC.”

“We understand that the decision is already written and ready to be published, but regardless of its conclusion the outcome will be the same.”My gut feeling tells me nobody will really pay attention tomorrow, due to the pandemic. We recently exposed profound EPO corruption and German journalists said they would not be covering it because of coronavirus. They actually said that.

The Team UPC troll/sockpuppet in Twitter (intended to lobby and ‘harass’ the FCC) said: “No. But heralded for tomorrow, Fr., at 9:30 am CET (though Court runs on limited capacity due to COVID-19).”

Well, the decision won’t matter for UPC’s fate or even for software patents in Europe. It is in many ways moot before its arrival.

We understand that the decision is already written and ready to be published, but regardless of its conclusion the outcome will be the same. No doubt Team UPC will shout from rooftops tomorrow morning, either in ‘damage limitation’ attempts (distorting the meaning of the outcome) or celebrations over nothing of real substance, merely resulting in yet more complaints and inaction from the German government.

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