05.25.21

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The EPO’s War on Justice and Assault on the Law — Part 19: Ladies and Gentlemen, Place Your Bets…

Posted in Courtroom, Europe, Law, Patents at 1:34 am by Dr. Roy Schestowitz

Previously in this series:

Games begin
What happens next is anybody’s guess, but don’t hold your breath…

Summary: The EPO‘s BoA decision on G 1/21 seems to have already been made by virtue of stacking; but it’s not entirely impossible that following the removal of Beckedorf and Josefsson (it happened after writing this series) something surprising will happen

At the time of writing, there has been no identifiable public reaction from the Enlarged Board of Appeal, except this, to the myriad allegations of partiality which have been articulated in the IP blogosphere in connection with case no. G 1/21.

Even the normally sanguine Thorsten Bausch, writing in the Kluwer Patent Blog, has been unable to hide his exasperation at Josefsson’s apparent contempt for a fundamental and time-honoured principle of natural justice – nemo iudex in causa sua – according to which no person should be entrusted with the task of judging a case in which they have an interest.

“Taking a pragmatic view, the only realistic strategy open to the Enlarged Board at this juncture seems to be the option that the Germans call “Flucht nach vorn” – a headlong rush forwards into the legal minefield in the hope of coming out on the other side in one piece.”Unfortunately, it seems that Josefsson is suffering from the widespread EPOnian ailment of “conflict-of-interest blindness” when it comes to this rather delicate issue.

To paraphrase Oscar Wilde, having a Chairman who is under suspicion of partiality might be regarded as a misfortune; to have a panel with a majority of members tainted by such suspicion looks like downright carelessness.

However, the fact of the matter is that, as the scheduled date for the hearing approaches, it becomes increasingly difficult for Josefsson and his panel to come up with a graceful exit strategy which would allow them to extricate themselves in a credible manner from the appalling legal mess of their own making.

Taking a pragmatic view, the only realistic strategy open to the Enlarged Board at this juncture seems to be the option that the Germans call “Flucht nach vorn” – a headlong rush forwards into the legal minefield in the hope of coming out on the other side in one piece.

“As things stand, it’s looking pretty much like a “slam dunk” for Josefsson.”Of course the Enlarged Board’s predicament is significantly eased by the fact that whatever course of action it decides to take, there is no higher review instance to point an admonishing finger at its errors.

So even if the Enlarged Board decides to ride roughshod over fundamental legal principles and disregard its own internal rules for reasons of “political expediency”, nobody risks getting hauled over the coals for what – under “normal” non-EPOnian circumstances – might be considered to amount to serious judicial misconduct.

As things stand, it’s looking pretty much like a “slam dunk” for Josefsson.

Three of his internal members – van der Eijk, Eliasson and Ritza – are generally reputed to be managerially compliant “minions” who know their place and can be depended on to dance to the Chairman’s tune.

The only internal member with a credible track-record of independence is Beckedorf whose role in the procedures G2301/15 (warning: epo.org link, hence surveillance risk) and G2301/16 (warning: epo.org link) demonstrated that he wasn’t always prepared to dance to the tune of his political masters when their wishes conflicted with his sense of professional ethics.

“Three of his internal members – van der Eijk, Eliasson and Ritza – are generally reputed to be managerially compliant “minions” who know their place and can be depended on to dance to the Chairman’s tune.”But a lot of water has flowed under the Ludwigsbrücke near the EPO headquarters in Munich since those days.

It remains to be seen whether or not Beckedorf proves himself able and willing to swim against the tide in the present case.

To begin with he may have been chastened by his experiences during the proceedings in cases G2301/15 and G 2301/16 when he was reportedly faced with the threat of non‑reappointment by Benoît Battistelli‘s protector, Jesper Kongstad.

Beckedorf’s next reappointment (to take effect as of 2022) does not appear to have been decided yet. It is probably due to be decided later this year, most likely in June. That is likely to make him wary about trying to rock the boat too much between now and then.

Apart from this, it has been rumoured that Beckedorf may harbour personal ambitions for a more senior position in the Boards of Appeal, for example as head of the Legal Board. Those are precisely the kind of considerations that tend to make a nominally independent judicial official more inclined to show deference to the whims of his political masters.

EPO and USPTO
Josefsson and Beckedorf attending a Judicial Symposium in Tokyo in 2018

Last but not least, the significance of Rule 12d(3) of the EPC (warning: epo.org link) cannot be ignored.

The consequence of this Rule – which was introduced by Battistelli’s 2016 “reform” – is that Beckedorf, like all other internal members of the Enlarged Board, is dependent upon the goodwill of Josefsson to obtain a “positive opinion” on his reappointment.

“Let’s not forget that Josefsson was re-appointed by the Administrative Council in December 2020 and he clearly plans to remain in charge at Haar until 2027 at least.”Under the given circumstances, we can conclude that Beckedorf is likely to be extremely reluctant to dirty his copybook with his Swedish overlord.

Let’s not forget that Josefsson was re-appointed by the Administrative Council (warning: epo.org link) in December 2020 and he clearly plans to remain in charge at Haar until 2027 at least.

Arnold in costume
Now that’s what Battistelli would call “a real judge”!

The main potential for an upset in Josefsson’s “roadmap” for the referral case no. G 1/21 would appear to lie with the external members – the “real judges” as Battistelli would have called them.

One commentator on IPKat put it like this back in March:

“It would be interesting if Mr. Arnold and/or Mr. Chatzikos were to refuse to take part in what, on the face of it, is a kangaroo court.”

It would indeed be interesting if such a thing came to pass, but how likely is it?

We know next to nothing about the Greek judge, Evangelos Chatzikos, or his attitude to “kangaroo courts”. Cynics will probably reply that coming from the Greek legal system he is unlikely to have much difficulty in accommodating himself to the legal “no-man’s land” [PDF] of EPOnia.

“It’s equally possible that Arnold might decide to take the easy option to “go with the flow” and trouser his € 1000 “petty cash” without asking too many questions.”On the face of things, it is the “external member” from the UK – Lord Justice Richard Arnold – who would appear to be the person most likely to object to the procedural shenanigans which have tainted the case so far.

However, it is by no means certain that Arnold will object.

Even if he felt motivated to do so, the fact of the matter is that, as long as he remains on his own in this regard, he is in the unenviable position of being outnumbered by six to one.

It’s equally possible that Arnold might decide to take the easy option to “go with the flow” and trouser his € 1000 “petty cash” without asking too many questions.

Josefsson and Arnold
Josefsson and Arnold at the 17th European Judges’ Symposium (Tallinn, September 2014).

It also deserves to be noted that Josefsson and Arnold appear to be well-acquainted with each other on a professional level – as evidenced by the photographic record of the 17th European Judges’ Symposium which was held in Tallinn in September 2014.

In the group photo of the event, the pair can be seen standing in close proximity to each other, with “Calle” grinning smugly like the proverbial “Cheshire cat”.

“What happens next seems to be anybody’s guess so – if you want to avoid a disappointment – don’t hold your breath!”So it’s quite possible that, for old time’s sake, Arnold might prefer to avoid any kind of professional showdown with his “learned friend” Josefsson.

What happens next seems to be anybody’s guess so – if you want to avoid a disappointment – don’t hold your breath!

That concludes our review of the current state of play in referral case G 1/21.

A final summing-up will follow shortly.

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