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.

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. Links 30/11/2020: GhostBSD 20.11.28, Nitrux 1.3.5, Linux 5.10 RC6, GNOME Circle, Microsoft Collapses Again in Web Server Share

    Links for the day



  2. Alternatives to the World Wide Web, to HTML, to HTTP/S, and to the Internet

    Looking around the Web (yes, the Web) for alternatives to the Web (and the stack underneath the Web), we're finding that IPFS is mature and robust enough for our needs



  3. Management of the EPO Dragged to the International Labour Organisation Over Its Assault on the Right to Strike

    Opinion on strikes challenged by the Central Staff Committee of Europe's second-largest organisation; if strike rights are almost abolished there, what hope is there for the rest of Europe?



  4. [Meme] Management of the EPO Cannot Let the Staff Breathe or Smell Freedom

    Working for the EPO means giving up on one’s human rights; that’s the sort of conclusion many workers have reached



  5. “ViCo” is Nothing New (Not Even the Acronym), Done on 9/11 Last Year, Been Possible as Long as the EPO Has Existed

    Contrary to what many people are led to believe, the EPO isn't embracing innovation, it's just embracing COVID-19 and leveraging lock-downs (de facto house arrest to some) to impose an illegal practice on EPO staff and EPO stakeholders



  6. Release: Early Letters and Documents About Financial Hoax Disguised as EPO 'Study'

    It was over a year ago that staff representation at the EPO expressed concerns about what would later enrage workers — seeing that based on unscientific fabrications the EPO would take away what had been promised to them



  7. IRC Proceedings: Sunday, November 29, 2020

    IRC logs for Sunday, November 29, 2020



  8. Managing IP: Puff Pieces Galore for the EPO's Dictatorship (Complete With Buzzwords and PR Stunts)

    By giving a platform to notorious patent trolls and ‘engaging’ with the EPO‘s dictator (whom only 3% of EPO staff trusts) Managing IP is sort of giving away its real agenda, which isn’t journalism but conducting or assisting misinformation campaigns



  9. Links 29/11/2020: Genode OS Framework 20.11, Linux 5.11 Kernel Changes, and Latest in KDE Itinerary

    Links for the day



  10. Sincere Thoughts About Outreachy

    Outreachy's role in the Free software community and inclusion in the FSF's High Priority Projects, as seen from the eyes of a female coder from a minority group; she used to work for the Free Software Foundation (FSF) and she expresses concerns about what Outreachy has become



  11. Free Software Under Tyranny of Codes of Conduct as the Western Equivalent of Blasphemy Law (Corporations as the New Religion/Sponsors as Deities)

    The free speech crisis in Free software communities has enabled expulsion of opinionated people whose opinions truly matter; in their place we now have companies that bomb people, sometimes even kidnapping children and sterilising women because nothing says “Ethics” like naked fascism and corporate domination everywhere



  12. Release: 4 More Documents and Letters About the Financial Siege at Europe's Second-Largest Institution

    Documents disputing the accuracy of the "hoax" from António Campinos and the Mercers



  13. One Year Ago: The Last EPO Demonstration Before COVID-19

    About a year ago staff of the EPO apparently had its last protest (in front of the Isar building) before staff got ‘herded’ into homes, where workers became more isolated and even illegally spied on



  14. [Meme] Unified Patent Court Agreement (UPCA) is an Attack on Europe and the European Businesses That Don't Do Litigation

    Litigation lawyers and patent zealots want to set Europe ablaze with legislation that they themselves crafted; thankfully, however, they face constitutional obstacles, no matter how many politicians they bamboozle and buy



  15. Reasons EPO Staff Decided to Go on Strike This Year (Before or Until Coronavirus Prevented It)

    An year-old letter from the Staff Union of the European Patent Office (SUEPO) to the President of the EPO; 7 reasons for going on strike are enumerated



  16. EPO Can Save Money by “Dropping Events Like the Inventor of the Year, Reducing the Number of Managers, Throwing Less Money at Consultants or Bringing the Boards of Appeal Back into Office Buildings.”

    Constructive suggestions from EPO staff, made just over a year ago and assembled into a letter to their EPO colleagues



  17. The Real Fate of the UPC 'Stunt' in Germany Will be Known Next Month (or Next Year) and There Are Substantial Constitutional Barriers in the Way

    Contrary to what Team UPC wants people to think, UPC(A) isn’t a “done deal” in Germany; they never actually addressed the substance of complaints and with help from Benoît Battistelli‘s friends in the Commission they’re just attempting a blatant coup



  18. Microsoft Removes Free Software From GitHub Again, This Time for Motion Picture Association (MPA)

    GitHub is proving to be more of a censorship site than a code-sharing site; with the GitHub takeover Microsoft became a 'censorship police' or force of occupation against its ideological competition; just weeks after the YouTube-DL debacle and further take-downs seeking to 'protect' broken DRM schemes (by banning code) we can see that Microsoft isn't defending developers at all; it's just protecting the interests of MPA, RIAA and other Biden circles from the interests of the general population, which sometimes circumvents perfectly circumventable 'DRM' schemes



  19. IRC Proceedings: Saturday, November 28, 2020

    IRC logs for Saturday, November 28, 2020



  20. Help Make Techrights (and Other Technology-Centric Sites) More Robust to Censorship by Setting Up More IPFS Nodes

    We’re trying to improve the site’s availability (ensuring it can never be offline) and make it more censorship-resistant; people who adopt IPFS can make that happen while tackling the “bloated Web” and “centralised Internet” issues — all at the same time



  21. Microsoft Loves Linux and Android Apps Running on Windows Instead of GNU/Linux and Android Devices

    Microsoft loves Linux, they say; but as Microsoft's former VP James Allchin put it: "If you're going to kill someone there isn't much reason to get all worked up about it and angry -- you just pull the trigger [...] We need to smile at Novell while we pull the trigger."



  22. Links 28/11/2020: RenderDoc 1.11, GNOME 40 Scrolling Horizontally

    Links for the day



  23. Nine Documents About the Financial Siege Against EPO Staff (Past, Present, and Future)

    Today we release dozens of pages of letters and documents (internal to Europe's second-largest institution); they all focus on the betrayal and skulduggery, crushing staff in spite of what was originally promised (and what workers actually signed up for)



  24. EPO Senior Management (Cabal) “Essentially Deaf to the Proposals From Staff Representatives.”

    Representatives of EPO staff feel like the management of the EPO is "deaf" and uncaring; there's hardly any meaningful progress (or none whatsoever) when it comes to truly honest dialogue with real participation



  25. EPO Management, Led by António Campinos, Attempted to Stifle or Prevent Staff From Being Surveyed

    Battistelli's cabal, which covers up a lot of fraud and corruption, is attempting to prevent the staff from expressing an opinion (for insiders and perhaps outsiders to assess) because things are really bad and autocratic measures are seen as necessary to keep the lid on issues/abuses



  26. The European Patent Office's Central Staff Committee: Office Cannot Recruit Fit-for-Purpose Patent Examiners Anymore

    One third of EPO recruits are 'locals' (Germans), 0.2% are Swiss, 1% Scandinavian; the EPO as an employer became unattractive and it's unable to attract the staff it needs (as was projected and planned when the EPC was agreed upon)



  27. IRC Proceedings: Friday, November 27, 2020

    IRC logs for Friday, November 27, 2020



  28. Links 27/11/2020: Jolla is 7, Diffoscope 162, MNT Reform Production

    Links for the day



  29. The Time Coronavirus Helped EPO Management Prevent Staff From Protesting and Going on Strike (March 26th)

    "In view of the spreading of the New Corona Virus, the planned General Assemblies have to be cancelled," the Staff Union of the European Patent Office (SUEPO) wrote in the wake of the crisis across Europe back in March (weeks ahead of a planned strike)



  30. Guarding Your Privacy With E2EE: Primer

    "As with all security, there is assumed risk no matter how careful you are. There are no security guarantees but that doesn't mean you shouldn't try."


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts