Bonum Certa Men Certa

Virtual Injustice -- Part 11: Perceptive Comments and Caustic Criticism

Previously in the series:

  1. Virtual Injustice -- Part 1: António's Increasingly Wonky Legal Fudge Factory
  2. Virtual Injustice -- Part 2: The ViCo Oral Proceedings of 28 May 2021
  3. Virtual Injustice -- Part 3: All the President's Men…
  4. Virtual Injustice -- Part 4: Mihály Ficsor, the EPO's Hungarian “Fixer”
  5. Virtual Injustice -- Part 5: Benoît's “Friends” in Budapest
  6. Virtual Injustice -- Part 6: Best Buddies With António
  7. Virtual Injustice -- Part 7: Musical Chairs and Revolving Doors
  8. Virtual Injustice -- Part 8: A Well-Connected 'IP' Maximalist
  9. Virtual Injustice -- Part 9: Heli, the EPO's Nordic Ice-Queen
  10. Virtual Injustice -- Part 10: Vapid and Superficial Coverage in the 'IP' Blogosphere


Thrown objects
Many of the comments on the actions of the EBA have been quite critical.



Summary: The EPO's management managed to silence a lot of the critical media (handouts and threats from Benoît Battistelli and António Campinos), but silencing comments is a lot harder; though we don't know which ones were moderated out of existence...

In the last part we looked at the coverage of G 1/21 in the 'IP' blogosphere and noted the failure of most reports to get to grips with the important issues at stake in the present case.



As often happens, the real "meat" is to be found in the comments which appear underneath the blog posts themselves.

"As often happens, the real "meat" is to be found in the comments which appear underneath the blog posts themselves."Some of the comments posted beneath the IPKat report are very perceptive and informative and deserve closer attention.

The first person to comment referred to the dismissal of the appellant's "compelling" submissions which alleged "continued lack of impartiality of the amended panel".

The poster concluded that "today marks a sad loss of the days when impartiality could be expected" from the EPO's Enlarged Board of Appeal.

The next person to comment added that "it also marks the end of the days where rules had to be obeyed (at least for the EBoA)" and continued as follows:

The EBoA discussed and refused request 1 (postponement of the Oral Proceedings) in non-public consultations only with the Appellant when there was no justification to exclude the public on this point, and granted request 2 (Oral Proceedings to discuss Art. 24 EPC) without obeying Rule 115 EPC.

And what about the approach that serving documents to parties and clause 2 of Art. 9 RPEBOA are not so important? Only in the last moment the EBoA "gracefully" granted (less than) one month for the Appellant to submit his observations. Surely, Art. 10 RPEBOA provides that third parties' observations (and amicus curiae submissions) "may be dealt with as the Board thinks fit".

This Board obviously thinks it fit to put them on an USB stick and then directly throw them in the bin. Which patent attorney right in his mind would put in his or her computer an USB stick that had been sent to him by mail? I hope none.


The comments in a response from another poster under the pseudonym "The fall of the EBA" were even more caustic and began by referring to the infamous removal from office proceedings G€ 2301/15 (warning: epo.org link) conducted back in September 2015:

Talking about an USB stick: when the EBA was called in to confirm the sacking of one of its members, the then president gave the EBA a stick with all alleged proof of the misbehaving of the accused member and told the EBA it should take knowledge of its content. At the time the EBA refused to look at it.

Now it is the BA which gives an USB stick to a party and tells it to take knowledge of its content. It is amazing to see how the EBA has evolved! Do not tell me that the EBA is really independent.


The poster continued with the following criticism of oral proceedings by ViCo and suggested that the proceedings in G 1/21 were being conducted in a manner designed to facilitate Campinos' plans for the "New Normal" at the EPO:

OP by video before the EBA do not give the guarantee that the representatives of the president cannot participate in the debate within the EBA. It might be far-fetched, but in view of the manner G 1/21 has been dealt with by the EBA up to now, I would not be surprised.

It is clear that the speed with which the chair of the BA called OP was to please the president. Without OP by ViCo no “New Normal”!


In conclusion, there were some harsh words about the Enlarged Board and the President of the Boards of Appeal, Carl Josefsson:

That on top [of the fact that] the EBA is not even aware of its own RP is as such a scandal.

That the chair of the BA had to be told by his peers that he should not act in G 1/21 also a scandal. I do not think that his credibility has increased.


Some posters were particularly critical of the precipitous haste with which the procedure was conducted in the run-up to the hearing of 28 May:

Especially given the fundamental nature of the decision here, there should absolutely be sufficient time for all parties to prepare the case. This was true even before the two most crucial members of the EBoA have been exchanged mere days before the Oral Proceedings, and it is certainly true now. Compare this to a "normal" EBoA case in which the EPO has no "causa sua" interest and check how much time there usually is to prepare legal opinions and so on.


Much of the discussion focused on the lack of independence of the Boards of Appeal and the evident failure of Battistelli's "reform" in 2016 to solve this problem.

A poster under the pseudonym "Bring About" made the following observations:

The letter of the opponent detailing its objections on suspected partiality is very interesting, cf.

https://register.epo.org/application?number=EP04758381&lng=en&tab=doclist (Letter of 24.05.2021)

For me the opponent convincingly shows that a decision untainted by suspicions of partiality is impossible for this case.

The reasons are multiple, but I would say that the fundamental one is the lack of independence of the (E)BoA.


The poster's comments on Battistelli's 2016 "reform" were as follows:

The situation has been clearly rendered worse by the actions of the current President of the Boards, a position created with the latest reform.

Thus it seems that this reform under the pretense of increasing the (perception of) independence of the Boards has in fact aggravated the issue.


Another poster - "Proof of the pudding" – referred to Article 6 of the European Convention on Human Rights, and stated that there were "objectively justifiable doubts" regarding compliance with the criteria for judicial independence laid down in the jurisprudence of the European Court of Human Rights.

The poster concluded by asking the question: How has this been allowed to happen?

In a later comment, the same poster referred to the Burgh House Principles On The Independence Of The International Judiciary and the requirement that a judge refrain from adjudicating on cases where he could be reasonably suspected of having an interest in the outcome. The poster concluded that "the President of the BoA must have overlooked this principle when (originally) deciding to serve in case G 1/21".

Criticism of Carl Josefsson and the role which he had played in the procedure also came from "The fall of the EBA":

The whole way G 1/21 has been managed by the chair of the EBA shows amply that the BA are anything but independent.


In a subsequent post "The fall of the EBA" took the view that the procedural "mess" in G 1/21 was a consequence of Battistelli's Boards of Appeal "reform":

The whole mess the BA/EBA finds itself in, is the direct result of the reform of the BA wanted by a former head of the EPO.

It is a scandal that members of the BA can only be reappointed if they have shown a given "performance". The criteria are still non-public. This is also scandalous!

Without leaning too far out of the window, performance means probably a certain flexibility of the spine associated with a production increasing every year like in DG1.

The EPO has indeed been degraded to a producer of "targets".

When one sees the number of patents revoked or severely limited in opposition because the grant procedure is flawed, it becomes alarming. Just look at the published decisions and draw your conclusions. As only 5% of patents are opposed, when you extrapolate to all the grants it is daunting!


The damning verdict from this poster was as follows:

The EBA is tumbling from one scandal to the next.

One wonder who will be the beneficiary of the deed!

I would say for some at the EPO the rules of law deserve a “dynamic interpretation”, and if they are not to their liking, they are simply ignored.

The tragic fact is that people in charge of paying due respect to the EPC are actually acting against it.


Overall, there appeared to be a general consensus amongst the posters that the manner in which the case had been handled reflected poorly on the Enlarged Board of Appeal and gave serious cause for concern about the state of judicial independence at the EPO.

"Overall, there appeared to be a general consensus amongst the posters that the manner in which the case had been handled reflected poorly on the Enlarged Board of Appeal and gave serious cause for concern about the state of judicial independence at the EPO."As we have seen, a number of the comments were highly critical of the President of the Boards of Appeal, Carl Josefsson, who was deposed as chairman of the panel on 17 May.

However, as previously explained, despite the fact that Josefsson has been sidelined, he still remains in a position to exert an indirect influence on the proceedings.

In the next part we plan to take a closer look at this particular "elephant in the room".

ViCo offline
President of FFII, who 'attended' the hearing, was more than impressed by the unprecedented transparency



Recent Techrights' Posts

Traf-O-Data, the Company That Jeffrey Epstein's BFF (Bill Gates) (Co)Founded 53 Years and Went Out of Business Due to Heavy Losses
Who will die first, Bill or Microsoft?
A Note on SimilarWeb
Or why SimilarWeb is meaningless for more than 99% of the sites on the Web
IBM Said to be Shutting Down Offices or Sites in the United States
the press can no longer avoid admitting that IBM moves many jobs to India
LLM Slop as Attack Vector on the Reputation of Linux
The attacks on Linux have escalated to information warfare
 
Links 04/04/2025: Fury in South Korea, Flight MH370 Remains Mystery
Links for the day
Gemini Links 04/04/2025: Anger and Raspberry Pi CM4
Links for the day
Links 04/04/2025: LLM Slop Bubble Bursting and Korea Music Copyright Association Bans Slop 'Music'
Links for the day
Why Microsoft's Shares Sank Almost 20% in Recent Months (the Bubble is Imploding)
verified press reports from the past 24 hours
GNU/Linux Rises to Almost 5% in Algeria While Windows Sinks to All-Time Low
GNU/Linux grew tenfold
Where to Get More Gags
A valued reader recommended that to us
Links 04/04/2025: Tech Stock (Inc. GAFAM) Fall, Google Pretends to Do End-to-End Encrypted Emails (With Google in Control)
Links for the day
To Participate in Fedora Diversity You Must Use Proprietary Software
Not for the first time either
Yandex About to Be Three Times Bigger Than Microsoft (Bing) in Asia
That's about 60% of the world's population
Gemini Links 04/04/2025: Decoupling Updates, Elaho as Gemini Client
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, April 03, 2025
IRC logs for Thursday, April 03, 2025
Microsoft's Trouble in Africa and Asia
A new all-time high for GNU/Linux
Brett Wilson LLP Reported to the Solicitors Regulation Authority (SRA)
The saddest thing in all this is that law firms can maintain high standards shall they wish to
Links 03/04/2025: Tariff Pains and C.D.C. Cuts
Links for the day
StatCounter: Microsoft is Masking a Disaster, It's Way Behind DeepSeek Already and Interest in LLMs Has Waned
it turns out the money "raised" for "Open" "AI" may not even exist at all
Links 03/04/2025: SoftBank Money for Microsoft "Open" "AI" Probably Doesn't Even Exist, Wikimedia Foundation Blasts LLM Nuisance While Microsoft Admits Demand Has Shrunk
Links for the day
Gemini Links 03/04/2025: Patch Panel and Pictures
Links for the day
Islamic Republic of Iran: GNU/Linux at All-time High This Month, Windows Falls to 12%
Vista 10 is up this month despite being "end of life" (EoL) soon
Indonesia: All-Time Highs for GNU/Linux
What's noteworthy right now is the growth of GNU/Linux
statCounter Says GNU/Linux Usage is Up Again (Internationally)
some preliminary April data
Only on April 1st Can the Free Software Foundation Associate With Microsoft's Open Source Initiative (OSI)
We saw some pranks that day linking the FSF to Microsoft (e.g. "endorsing" Windows)
Confirmed in the Mainstream Media: A Lot of Microsoft "Workloads" Were Just LLM Slop (Helping to Fake Growth for Years, as Microsoft Had Paid "Open" "AI" to Become a "Client") and Demand is Rapidly Waning, Datacentres Canceled and/or Shut Down
Anything to facilitate further accounting fraud
Taiwan's Media Covers Closure of Microsoft's "AI" Lab, It's Time to Talk About the Gradual Death of Windows and Implosion of the "AI" Bubble
Earlier this week we showed that mostly Asian media had the 'nerve' to mention Microsoft silently shutting down its 'AI' lab
IBM Gets Rid of Kelly Chambliss as Mass Layoffs Reported in IBM Consulting, IBM Loses Key Contracts/Graft
IBM Consulting has been in disarray lately
More Gains for GNU/Linux, Based on Web Surveys
the Steam site shows rapid growth for "Linux" this month
Slopwatch: Anti-Linux Articles, Not Even Written by Humans
Why aren't Web sites more vocal about this problem?
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, April 02, 2025
IRC logs for Wednesday, April 02, 2025
Links 03/04/2025: Apple Fined Over Secret Surveillance, "Elegant Writer For A More Civilized Age"
Links for the day
Gemini Links 02/04/2025: Books and Cold Tea
Links for the day
Links 02/04/2025: More Layoffs, Nokia Again Takes Advantage of Illegal and Unconstitutional Patent Court With Nokia Staff as 'Judges'
Links for the day
Links 02/04/2025: Seizures and Returns to Windows of 24 Years Ago
Links for the day
LLM Slop Helps Obscure and Distort News About Layoffs (IBM, GAFAM)
It's hard to find accurate information
Links 02/04/2025: Microsoft Developers Are Threatening to Go on Strike, World Backup Day Noted
Links for the day
Gemini Protocol Has Growing Appeal (the Web Got Too Bloated and Full of LLM Slop)
For any "data plan" with bandwidth limits or "tiers" it would be cheaper to use/browse Geminispace
The Web Can Survive LLM Slop, But Only If We Collectively Shun and Discourage Serial Sloppers
Doing nothing ought not be a possibility
Amid Secret Shut-downs and Mass Layoffs at Microsoft (4 Waves of Layoffs in 3 Months of 2025) Some Microsoft Staff Expected to Go On Strike
workers going on strike
Gemini Links 02/04/2025: No more on Mastodon and Gemini Mention Script in Go
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, April 01, 2025
IRC logs for Tuesday, April 01, 2025
My Motion Disbarring or “Striking Off” Brett Wilson LLP for Enabling Violent Americans Who Try to Crush Microsoft Critics in the United Kingdom by Multiple SLAPPs
"Guns for hire" (for Microsoft people who received Microsoft salaries)
The U.S. Patent and Trademark Office Hijacked Again by Patent Litigation Industry, as President Cheeto Prioritises Aggressors
The "mafia" has taken over the "industry" and the Federal system (justice and constitutions trampled upon)
Ubuntu Slop and FUD Manufactured With LLMs and Funded (by Oneself) 'Studies'
Slop and FUD are ruining the Web