03.14.21

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The German Constitutional Court Needs to Recognise That the EPO’s Tribunals Are Not Independent and EPC Has Not or Isn’t Being Honoured for Quite Some Time Now

Posted in Europe, Law, Patents at 6:15 pm by Dr. Roy Schestowitz

Video download link

Summary: The software patents situation at the EPO isn’t being resolved and probably cannot be resolved as long as corrupt management besieges judges who were all along supposed to be entirely autonomous and unafraid of Office management

THE EPO isn’t functioning. Granting lots and lots patents is “functioning” in the same sense pouring oil into the ocean (or up from the bottom of the ocean like BP did a decade ago) is “extracting”…

“The notorious bodyguard from the EPO is also in prison. Will the people he ‘guarded’ (with illegal weapons) join him?”At this moment of time, given the opportunity to speak to patent examiners discreetly (European patent examiners) you’re almost always guaranteed to hear that patent granting collapsed in terms of quality or validity, which are pretty much the same thing (surrogates). Even the EPO’s own studies (internal) confirmed this, but the EPO muzzled those who studied the matter. That’s just how defunct the Office has become. It’s a truth- and science-denying institution, eager to just pile up loads of money and then plunder that money by shrewdly-engineered schemes and scams. Nicolas Sarkozy is in prison. Who’s next? The notorious bodyguard from the EPO is also in prison. Will the people he ‘guarded’ (with illegal weapons) join him? Some are connected to Sarkozy.

The lockThe only astounding thing, as pointed out in the video above, is that there seems to be coordinated silencing in patent blogs, which seem highly determined to suppress discussion about all that, even in the comments section.

Recently, besieged judges decided to “play it safe” and say OK to a President who had pressured them to approve software patents. We’ve covered it before and we have cited some ‘coverage’ (from self-serving law firms) in Daily Links since then. No real reporting or journalism about it, just shameless marketing from lawyers looking to profit from European software patents, even of courts throw these out. Just like Benoît Battistelli, António Campinos is pressuring the judges to rule in a particular way, which means there’s no independence at all. Even by their own admission. In the weekend we caught up with two more pieces about it, both from law firms and their front groups. Or media operatives.

The video above discusses this self-serving post which said: “Hot off the press: The EPO has issued a decision on G1/19, which relates to the question of inventive step and simulations/simulators.”

It’s actually a day late, not “Hot off the press…”

“As a brief summary,” they said, “the Enlarged Board of Appeal has ruled that a simulation of a technical system can solve a technical problem by producing a technical effect going beyond the simulation’s implementation on a computer.”

Did the Board have independence? No. More laughable was this ridiculous puff piece about “hey hi”, which spoke to no software professionals or representative body of theirs. They spoke to representatives of patent trolls, such as Bristows. They said: “The EPO’s enlarged board of appeal handed down the decision (G1/19) yesterday, March 10, holding that the established case law on computer-implemented inventions (CIIs) also applied to computer-implemented simulations.”

Where are the actual software professionals? Nowhere. Where’s the mention of the lack of judicial independence? Nowhere, of course. We’re meant to just blindly believe that the issue went away. Like magic!

Dr Ingve Björn Stjerna has meanwhile translated Justice Huber’s remarks on EPO complaints. A day after the decision above he published the following in his Web site:

Constitutional court judge Prof. Huber on the situation at the European Patent Office (11/03/2021)

As is known, several constitutional complaints against acts of the European Patent Office are currently pending before the German Constitutional Court (“BVerfG”), in which, inter alia, a violation of the fundamental rights to effective legal protection (Art. 19 (4) GG) and to the lawful judge (Art. 101 (1) sentence 2 GG) is complained of (cf. docket no. 2 BvR 2480/10, 2 BvR 421/13, 2 BvR 786/15, 2 BvR 756/16 and 2 BvR 561/18).

In the newest edition of one of the leading German commentaries on the German Grundgesetz, BVerfG judge Prof. Peter Huber, who is the judge rapporteur in the above-mentioned constitutional complaint proceedings, comments on the situation at the European Patent Office with regard to Art. 19 (4) GG as follows (von Mangoldt/Klein/Starck/Huber, Grundgesetz, 7th ed. (2018), Art. 19 GG, para. 540 ff., footnotes have been removed, translation from German):

“Against this background, the increasing erosion of the suspensive effect through the Europeanization of administrative procedural law (…) does not lead to a conflict with the claim to validity of the legal protection guarantee of Art. 19 (4), even if it encourages the trend towards a reduction of the German level of legal protection.

The same principles apply to the European Patent Office in Munich, which was established on the basis of the Convention on the Grant of European Patents (EPC) concluded on 5 October 1973, and has the task of granting a ‘European bundle patent’ as an intergovernmental body within the meaning of Art. 24 (1) in a uniform granting procedure according to uniform requirements. Its decisions can be appealed (Art. 106 EPC), these appeals are decided by Boards of Appeal with judicial independence (Art. 23 EPC). Their proceedings are designed in a judicial way, their activities are materially judicial in nature.

The compatibility of this possibility of appeal with the minimum standard of effective legal protection required by the Grundgesetz (Art. 24 (1), 79 (3), 19 (2) and (4)) is not hindered by the fact that the Boards of Appeal are not courts institutionally separated from the European Patent Office (Art. 15 EPC). This is because, on the one hand, the demands for structural congruence between the German legal system and intergovernmental bodies within the scope of application of Art. 24(1) did not prevail, and, on the other hand, the minimum level of effective legal protection required by Art. 19 (2), which must not be fallen short of even in the case of supranationalization of jurisdictional functions, is marked less by the institutional separation of the second and third powers than by the possibility of having any infringement of rights reviewed by an appeal to an independent body in a judicial procedure. This minimum is guaranteed under the EPC.“

The relevance of these comments with regard to the prospects of success of the aforementioned constitutional complaint proceedings is left to the reader’s assessment.

The part which bothers us says: “Its decisions can be appealed (Art. 106 EPC), these appeals are decided by Boards of Appeal with judicial independence (Art. 23 EPC). Their proceedings are designed in a judicial way, their activities are materially judicial in nature.”

Is there no recognition at the FCC that the EPC has long been violated by the EPO? Or that judges at Boards of Appeal complain about their lack of judicial independence?

“Those quotes are not good news for us,” one Free software activist told us.

We mostly agree. It’s important to convey the simple fact that the Boards or tribunals of the EPO aren’t functioning and questions about their independence are being squashed. Contrary to what today’s “Kat” would wish for us to think…

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