07.18.20

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Thierry Breton and the European Commission Must Answer Perfectly Legitimate Questions About European Patent Office Corruption

Posted in Europe, Law, Patents at 2:06 am by Dr. Roy Schestowitz

As we’ve been arguing for years, EPO scandals were assured to doom the credibility of the Commission (for failing to intervene and hold people accountable, all this despite the UPC being a clear bridge between the EPO and the EU)

Patrick Breyer, Germany
Patrick Breyer, Germany. Licence: Creative Commons CC0 1.0 Universal Public Domain Dedication.

Summary: MEPs are growingly aware and increasingly upset about the corruption in Munich; they want answers from the European Commission; having cronies like Thierry Breton in charge will only make things worse because that encourages the perception of collusion and cover-up

THE endless scandals of EPOnia are perhaps belatedly becoming a stain on the EU, which failed to act for over half a decade (as did the German injustice ministry, which looked the other way after illegal things had been done).

Looking at Kluwer comments (not the hogwash from Team UPC), the sentiment seems consistent; all 6 comments there basically blast the response from Commissioner Thierry Breton; it was just as bad if not worse than that of the German injustice minister, whose absurd words were quoted as fact by António Campinos, President of the ‘European’ Patent Office. “Nonchalant Biped” wrote:

The last thing the EU Commission wants is to re-open the can of worms that it created by not providing robust entry and exit of membership of the system, and by not really providing a flexible mechanism relating to the seat of the courts, instead relying, as usual, on a political compromise (one might be so unkind to say, “as usual”). The statement from a French commissioner is therefore totally unsurprising, given that France was the first country/major user of the UPC system to ratify. I do find that the comms unit adding on a Covid-crisis hanger as some sort of justification crass in the extreme, as it clearly indicates that the Commission will use anything it can to try and justify its position.

It would be nice, for once, if the legal issues surrounding the UPC (and there are several) could actually be sorted out before the whole things gets ratified and dragged screaming into existence, but of course, that would take another umpteen years of negotiating and horsetrading…

Notice how the last comment there mentions Mr. Breyer, an MEP who opposes software patents in Europe (owing to 35 U.S.C. § 101 the USPTO can no longer grant these patents too easily; not anymore… and courts almost always reject those).

Clare Daly (GUE/NGL); CC BY-SA 2.0And regarding our latest article about this, “Thierry Breton has two further questions on his desk awaiting response,” a source told us. This source cites “European Patent Organisation – disbandment of Audit Committee” (Question for written answer E-003299/2020) and “Establishment of a European Patent Organisation Treasury Investment Fund” (Question for written answer E-003298/2020). “Will be fun to watch him wriggling off the hook on those ones as he covers up for his old buddy [Benoît Battistelli] at the EPO,” our source noted.

“The Commission, and possibly Breton himself, will be under heavy burden/pressure to provide an answer with actual substance…”Both questions come from Clare Daly (GUE/NGL) (photo to the left; CC BY-SA 2.0), “an Irish politician who has been a Member of the European Parliament (MEP) from Ireland for the Dublin constituency since July 2019,” according to Wikipedia. “She is a member of Independents 4 Change, part of the European United Left–Nordic Green Left. She served as a Teachta Dála (TD) from 2011 to 2019.”

She has asked two very important questions very politely.

On 2 June 2020 she posted this question to the Commission, as per Rule 138:

The European Patent Organisation (EPOrg) is an intergovernmental organisation established under the terms of the European Patent Convention (EPC). Under the terms of Regulation (EU) No 1257/2012, increased co-operation between the EU and the EPOrg has been in progress since 2012 in the context of the EU’s Unitary Patent project. Furthermore, although the EU is not a contracting party to the European Patent Convention, it has observer status on the Administrative Council of the EPOrg under the terms of Article 30 of the EPC.

1. Does the Commission agree that the EU has a legitimate interest in ensuring that governance mechanisms at the EPO are fit for purpose?

2. Is the Commission aware of and concerned by the circumstances relating to the disbandment of the EPO Audit Committee in June 2011, a Committee which had only been established two years previously?

3. Does the Commission agree that the establishment of the Audit Committee was meant to empower the Board of the Administrative Council to better control the EPO, and that the consequence of its disbandment was to return this key oversight function to a single person – the President of the Office, and is the Commission of the opinion that current governance mechanisms at the EPO, particularly those on financial and budgetary oversight, are fit for purpose, and correspond to international best practice?

We covered this a long time ago. Daly also asked about EPOTIF, which we wrote a great deal about in the past (inspiring some press articles). To quote:

The European Patent Organisation (EPOrg) is an intergovernmental organisation established under the terms of the European Patent Convention (EPC). Under the terms of Regulation (EU) No 1257/2012, there has been increased cooperation between the EU and the EPOrg since 2012 in the context of the EU’s Unitary Patent project. Moreover, although the EU is not a contracting party to the EPC, it has observer status on the Administrative Council of the EPOrg under the terms of Article 30.

1. With this in mind, is the Commission aware of the circumstances relating to the establishment of an EPO Treasury Investment Fund (EPOTIF) in 2018 using cash reserves of approximately EUR 2.3 billion from the surplus accumulated in the current account of the EPOrg, as reported in German periodical WirtschaftsWoche on 22 June 2018?

2. Is it aware of and concerned about the reservations expressed by the German Federal Court of Auditors concerning the establishment of the EPOTIF?

3. Is it aware of the criticism of the EPOTIF voiced by a former judge of the German Federal Constitutional Court, who described the EUR 2.3 billion fund as a ‘shadow budget’ whose establishment allegedly ‘violates the fundamental democratic constitutional principle according to which public budgetary arrangements must be subject to parliamentary supervision,’ and which lacks a legal basis in the EPO?

The public should be thankful to Daly for bringing up these issues. The Commission, and possibly Breton himself, will be under heavy burden/pressure to provide an answer with actual substance; it will inevitably become a very heavy burden or reputational liability and having Breton in that key position will be a scandal. All the stuff we published about him last year is going to become ever more relevant.

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