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08.27.20

Techrights Needs Help From American Readers (in Order to Retrieve the Court Documents Regarding Bill Gates’ Engineer)

Posted in Bill Gates, Courtroom at 7:59 am by Dr. Roy Schestowitz

Guilty highlight

Jones page 1

Jones page 2

Jones page 3

Jones page 4

guilty plea one year apart

Summary: In order to advance our investigation of the arrest of Mr. Jones (at the home of an increasingly evasive Bill and Melinda Gates) we need to gain access to the above documents; please help Techrights if you can, as an American citizen, request most or all the documents (detailed instructions available)

BACK in January we took note of the above court documents, which we have not received yet. That was not too long after Bill Gates’ close ties to Epstein had become public knowledge and not too long before COVID-19 ‘stole’ the news. Now they try to associate anyone who has queries on the matter with cranks. Even if the corporate media too is inquiring.

We kindly ask readers who are based in the US to request all the above documents (over 100 pages, should cost about $30 all in all) and pass them to us for publication. All the detailed instructions can be found here (screenshots included; we published that in late January).

“We kindly ask readers who are based in the US to request all the above documents (over 100 pages, should cost about $30 all in all) and pass them to us for publication.”In order to get to the bottom of what happened at the mansion of Bill and Melinda we need to know what was said in the courtroom. It’s very difficult to find any information whatsoever about Mr. Jones (other than this case), let alone a mugshot or anything registered by the state (he appears to not to have ever registered as a sexual predation risk, contrary to the judge's ruling). We checked ourselves (mostly Ryan did) and found only other people with the same name. Ryan is currently low on money, so he has not petitioned the court for these papers. If anyone out there (US citizen) can do that, it will help us tremedously. The outcome of this case raises more questions than it answers because of glaring inconsistencies such as this… and the closer we look at the filenames, the more concerned we become.

08.18.20

Daniel Wallace Explains Why He Challenged the GPL (Copyleft) in Court

Posted in Antitrust, Courtroom, Free/Libre Software, FSF, FUD, GNU/Linux, Interview, Law at 10:30 pm by Dr. Roy Schestowitz

Richard Stallman
Richard Stallman’s last interview as FSF president

Summary: Almost 15 years ago Daniel Wallace alleged that copyleft (or GPL specifically) was problematic and contravened federal antitrust laws; he lost the case and now he explains to us why he pursued that misguided litigation campaign

OVER the past few days we’ve been studying the GPL challenge that was widely discussed a decade and a half ago after Daniel Wallace, about 60 at the time, had alleged that it was an antitrust violation. He even took it to court. As Wikipedia put it:

Wallace v. International Business Machines Corp., 467 F.3d 1104 (7th Cir. 2006), was a significant case in the development of free software. The case decided, at the Court of Appeals for the Seventh Circuit, that in United States law the GNU General Public License (GPL) did not contravene federal antitrust laws.

Daniel Wallace, a United States citizen, sued the Free Software Foundation (FSF) for price fixing. In a later lawsuit, he unsuccessfully sued IBM, Novell, and Red Hat. Wallace claimed that free Linux prevented him from making a profit from selling his own operating system.

We found the current contact details of Mr. Wallace and Ryan, who comes from the same state where Wallace resides, did eventually call him. That was yesterday. “He said it was long in the past and that he was planning to develop a product based on BSD,” Ryan reported. “He wouldn’t go further than that. He just said he’s 74 now and it’s long in the past. He chose not to proceed because he was representing himself pro se and that it would have bankrupted him had he continued to appeal.”

When we started exploring this we wondered aloud who might have funded or ‘bankrolled’ the lawsuit.

“When we started exploring this we wondered aloud who might have funded or ‘bankrolled’ the lawsuit.”“He said it was just his opinion that the GPL doesn’t “hold water” legally,” Ryan continued, “and that giving software away and charging for services prevents others from making competitive products.”

Did Microsoft have anything to do with this (like the SCO lawsuit)? “Doesn’t pass the “sniff test” for Microsoft,” Ryan said, “I think it’s just someone who wanted to knock over copyleft because they had some idea for a product that couldn’t compete. He seemed to not like Red Hat very much. He said that it was dishonest to give the software out for free and charge for services. The court kept saying that he failed to articulate an antitrust argument. They let him amend his complaint 4 times before they threw it out.”

Groklaw wrote a lot about it at the time. Sadly, some Groklaw pages are no longer accessible.

“Groklaw wrote a lot about it at the time. Sadly, some Groklaw pages are no longer accessible.”“He seemed to be under the impression that the GPL requires software to be free of charge,” Ryan said. “It doesn’t. It just makes it hard to sell because someone could take the same source code and come up with a different version. He said he got hit with huge costs for the legal costs incurred by FSF and the three companies (IBM, RH, Novell).”

“Although,” Ryan continued, “he accidentally contributed something to the GPL. Instead of knocking it down, he gave us case law that it provides direct benefits to the market, as decided by the trial judge, and a three judge panel voting unanimously at the Seventh Circuit appeals court. Which can be cited if someone else is ever hit with antitrust complaints regarding a Free Software License. I’d say that Daniel Wallace’s demeanor was more shocked that someone wanted to talk to him and evasive, but definitely kind of blindsided that someone would poke around at that after 15 years.”

It’s never too late to start pursuing answers and clarify.

“He said he was looking into some product based on BSD but wouldn’t elaborate,” Ryan summarised. “I mean, there are small tech companies in the Indianapolis area, so it’s certainly possible that he wanted to make a server offering or a network product, where FreeBSD was competitive with Linux at the time, mostly.”

“In reality, what Microsoft is doing — licence-wise — is far closer to a violation of antitrust law.”“He has very strong opinions that the GPL is illegal under copyright law. He kept saying things like “I couldn’t attack it using copyright law, so I went after it with antitrust law.”.”

As Wikipedia put it: “On May 16, 2006, Judge Richard L. Young dismissed the case with prejudice: “Wallace has had two chances to amend his complaint [...]. His continuing failure to state an antitrust claim indicates that the complaint has “inherent internal flaws.” [...] Wallace will not be granted further leave to file an amended complaint because the court finds that such amendment would be futile.”

In reality, what Microsoft is doing — licence-wise — is far closer to a violation of antitrust law. IBM, Novell, and Red Hat collaborating in the open, or sharing code, isn’t anywhere as problematic as what Microsoft does.

“No less than Bill Gates himself said in a recent Fortune article that Microsoft competes better against Linux in China when there’s piracy than when there isn’t.

“So, Microsoft actively looks the other way as people pirate its software. It builds its market share that way, and lets people get used to the idea of having Windows at a certain price.”

ECT

EPO Censorship Rebuked by Former UK Human Rights Judge

Posted in Courtroom, Europe, Patents at 1:18 pm by Guest Editorial Team

The EPO still censors every single page in Techrights, which it also threatened using several law firms

EPO IAC
Former UK Judge at the European Court of Human Rights, Sir Paul Mahoney:
Now head of the EPO’s Internal Appeals Committee

Summary: The European Patent Office (EPO) under the leadership (maladministration) of António Campinos and Benoît Battistelli is in noncompliance with international standards of law

In 2017 (warning: epo.org link) following an unrelenting stream of adverse publicity both inside the EPO and outside, Battistelli was forced by the Administrative Council to reform the EPO’s internal justice system.

Since then the Internal Appeals Committee (IAC) has been headed by Sir Paul Mahoney, a distinguished British legal scholar who previously served as first President of the European Union Civil Service Tribunal (2005 to 2011) and as the UK’s judge on the European Court of Human Rights from 2012 to 2016.

Somewhat belatedly the Mahoney-led IAC is getting around to dealing with the massive backlog of internal appeal cases that built up during the Battistelli era at the EPO.

It’s an unenviable task that could be compared with the fifth labour of Hercules, cleaning out the large volumes of manure that have accumulated in the Augean stables of the Battistelli regime.

Augean
The IAC has the unenviable task of cleaning out the Augean stables of the Battistelli era

The role of the IAC is to issue opinions to the EPO’s two appointing authorities, the President and the Administrative Council, who then take a final decision which can be appealed to the ILOAT.

“Somewhat belatedly the Mahoney-led IAC is getting around to dealing with the massive backlog of internal appeal cases that built up during the Battistelli era at the EPO.”The system is far from ideal because the opinions issued by the IAC are only non-binding advisory opinions and the appointing authority is free to depart from them.

Also following a “reform” introduced by Battistelli which remains in force long after his departure, the appellant no longer receives an advance copy of the IAC’s opinion when it is issued to the appointing authority as was the long-established practice prior to Battistelli. Nowadays a copy of the opinion is only provided to the appellant after the appointing authority has issued its decision.

“In a recent landmark case, the IAC issued an opinion belatedly excoriating an arbitrary and unprincipled act of censorship by Elodie Bergot which occurred almost four years ago in 2016.”Strictly speaking any departure from the IAC’s opinion by the appointing authority should be justified by reasons. But, hey, this is EPOnia where anything goes and where – to borrow a phrase from the ILOAT – “arbitrary, unprincipled or even irrational decision-making” was the ordre du jour under Battistelli.

Nevertheless it seems that the current EPO management under Campinos is generally more inclined to follow the opinions of the IAC than was the case under Battistelli.

In a recent landmark case, the IAC issued an opinion belatedly excoriating an arbitrary and unprincipled act of censorship by Elodie Bergot which occurred almost four years ago in 2016.

Bergot censorship
Sir Paul and his Committee were not amused by Bergot’s censorship

The background to this case is that in October 2016 the EPO Central Staff Committee (CSC) tried to publish two documents relating to the internal justice system of the EPO, namely a presentation criticising the operation of the system under Battistelli’s management and an open letter to the Principal Director of the Human Resources Department (Dir 4.3), Ms Elodie Bergot.

But Bergot was having none of this and – presumably with the backing of Battistelli and her hubby Gilles Requena – she spiked the publication.

Four years down the road, in a unanimous opinion the IAC has found that the Office was wrong in refusing the publication of the two documents.

“Four years down the road, in a unanimous opinion the IAC has found that the Office was wrong in refusing the publication of the two documents.”The IAC confirmed that freedom of speech is part and parcel of freedom of association. Those freedoms are not absolute or unconditional and an organisation may take steps to prevent publications containing incorrect information, or statements impairing the dignity of international civil service or grossly abusing freedom of speech. However, such interferences by an organisation are subject to limits.

The IAC found it impossible to accept that two minor statistical deviations from actual official figures in the presentation objected to by Bergot were grave enough to justify the refusal to allow publication.

The IAC also confirmed that staff representatives are at liberty to criticise the EPO’s policies and actions, even sharply and robustly, as long as the language used is not injurious or defamatory. This is a perfectly legitimate manifestation of the political jousting between management and staff bodies that is part and parcel of the life of a healthy International Organisation.

“The IAC unanimously concluded that the censorship imposed by Bergot was neither appropriate nor proportionate and that the refusal to publish both documents was tainted by illegality.”The IAC took the position that it is essential for staff members to have knowledge of the various positions discussed between EPO management and the Staff Committee on matters of general interest for staff. This ensures that EPO management can be exposed to a degree of accountability to staff in relation to policy decisions affecting them.

The IAC unanimously concluded that the censorship imposed by Bergot was neither appropriate nor proportionate and that the refusal to publish both documents was tainted by illegality.

In addition, it also found aggravating circumstances in the way that the EPO handled the CSC requests, by delaying a response and then failing to respond altogether.

The IAC also had “some difficulty in understanding” the EPO when it raised a receivability objection with no serious arguments at the appeal stage.

“So after almost four years of waiting the CSC has had a small taste of justice.”The good news is that the new President of the Office, António Campinos, has decided to follow the opinion of the IAC. As a result, the CSC is finally allowed to publish the documents from October 2016 on the EPO Intranet!

So after almost four years of waiting the CSC has had a small taste of justice.

But what is even more remarkable about this case, is that the person responsible for trampling on the CSC’s fundamental right to freedom of speech still remains in her position.

Back in June 2018, the ILOAT found Bergot guilty of masterminding a witch-hunt conducted against two SUEPO officials, one of whom was unlawfully dismissed from his position and the other who was unlawfully downgraded.

Bergot mugshot
Fit for purpose as head of the EPO’s HR department?
Some think not… but Madame Bergot still enjoys António’s support

To her officially documented record as a union-basher, Bergot can now add the distinction of an official rebuke for unlawful acts of censorship.

Campinos Battistelli
Why does Campinos continue to protect Bergot?

It’s a mystery how someone with such an egregious track record of trampling on the fundamental rights of staff can be allowed to remain in a senior managerial post at an international organisation like the EPO.

“It’s a mystery how someone with such an egregious track record of trampling on the fundamental rights of staff can be allowed to remain in a senior managerial post at an international organisation like the EPO.”What many people at the EPO are wondering is why Campinos is still protecting Bergot whose “fitness for purpose” as a principal director of the EPO’s human resources department is clearly open to question. Some suspect that it is part of a secret unwritten deal with his predecessor Battistelli.

Over to you on that one, António… anything to say?

Or has the cat got your tongue?

08.16.20

No Prison for Pre-Teen Child Rape Collections When You Work for Bill Gates?

Posted in Bill Gates, Courtroom at 4:39 am by Dr. Roy Schestowitz

Jones files

Child rape but no arrest
Article source

Summary: Today we reveal part of a page (one among thousands, with other fetishes too) to highlight the nature of files Bill Gates’ engineer was collecting before his arrest at the Gates mansion (we’ve redacted the hashes by blurring them); the latter article (screenshot and link) highlights the sheer lack of consequences, which is unheard of in cases of this nature and massive scale (more files were found than the media reported)

08.11.20

United States v IBM Archives/Resources

Posted in America, Antitrust, Courtroom, IBM at 8:23 am by Dr. Roy Schestowitz

Better days

Summary: As the massive case against IBM monopoly (United States v IBM; 104,400 pages of trial transcripts and 17,000 exhibits) predates the World Wide Web it’s difficult to find comprehensive literature about it any longer (Wikipedia and more modern sites are instruments of revisionism and reputation laundering)

WE recently used Wikileaks to access national archives about IBM, seeing that libraries are perishing and online libraries are often blocked by paywalls. Even more recent articles on this subject have been locked away from the public [1, 2, 3], so the younger generations are unlikely to learn much about what happened and why.

Back in the 1980s there were several widely-cited journal papers about it. Here’s one:

Thomas on IBM

Another one (much more recent):

2000 paper about IBM

This one we were able to get in PDF form with OCR:

Ibm antitrust

It’s possible that we’ll examine those more closely; very little is known to today’s younger people and the P.R. industry is happy to exploit that. IBM is still trying to control the news.

06.24.20

The EPO’s ‘Early Certainty From Google’ Approach (“Closest Prior Art”) Means Loads of Fake European Patents and Frivolous Litigation/Shakedowns

Posted in Courtroom, Europe, Patents at 11:07 pm by Dr. Roy Schestowitz

Good for wealthy monopolists and their law firms; bad for everybody else

Loads of money

Summary: Yet again, quite frankly as usual, the UK Supreme Court tosses European Patents right in the wastebasket; it’s clear that the only winner is a bunch of law firms which bicker over patents that should never have been granted in the first place

SEEING that Kluwer Patent Blog’s best author has just dealt with the EPO‘s controversial “Closest Prior Art” approach ([1] below; we wrote about this in [1, 2, 3, 4]), and moreover seeing that the UK Supreme Court [2,3] threw out European Patents that “sought to cover genetically modified mice that contain chimeric human-mouse antibody genes, as well as human antibodies made using those mice,” we’re witnessing yet more evidence of the comprehensive failure of the EPO under Benoît Battistelli and António Campinos, whose rush to grant as many patents as possible by rushing searches (aka Early Certainty From Google) led not only to grants of software patents in Europe but also grants/awards of monopolies that courts everywhere would reject (if one can afford the legal challenge; it’s expensive to appeal all the way up to the UK Supreme Court). AstraZeneca Kat wrote about it yesterday [2], calling it “a majority judgment”; why were these patents granted in the first place? And how many European Patents, if scrutinised properly, would suffer the same fate? SUEPO showed (about a year ago) how legal validity associated with European Patents had collapsed. One can guess how the EPO's management responded.

Related/contextual items from the news:

  1. The Problem of the “Closest Prior Art”

    As readers of this blog will be aware, the EPO applies a quite peculiar and unique method to the analysis of inventive step, the “problem-solution approach”. This approach breaks the statutory question of Art 56 whether the invention was, having regard to the state of the art, obvious to a person skilled in the art, down into a 3-step test. This involves (1) the determination of the “closest prior art”, (2) the formulation of the “objective technical problem”, and (3) the assessment whether or not the claimed invention would have been obvious to the skilled person. One might quip that this approach has replaced a single problem (the determination of obviousness/inventive step) with three problems. This is because parties nowadays frequently argue about (i) what the closest prior art was, (ii) what the objective problem was, and of course (iii) whether the invention, expressed as the solution to the objective technical problem, was obvious or not at the priority or filing date. This contribution will focus on question (i), i.e. the question of what is (or should be) the closest prior art, and whether the EPO’s approach towards the closest prior art has changed in the last couple of years.

    [...]

    The concept of the closest prior art within the problem solution approach has been invented to facilitate and objectivize the examination of inventive step. The facilitation resides in the presumption that if the invention is not obvious starting from the closest prior art document, then it will a fortiori also be non-obvious starting from further remote prior art. Thus, if and when one document can be identified clearly as being closest prior art, the examination of inventive step can be focused and limited on this one document (in combination with any further document from the state of the art). The question is what happens in cases where (a) several documents are (arguably) about equally close to the invention and (b) if no document qualifies as a sensible starting point. In scenario (a), an Opponent was, at least in the past, usually allowed to present multiple attacks for lack of inventive step even if they start from different “closest” prior art documents.

    […

    At present, T 320/15 seems to not have been used by other Boards to prevent an Opponent from presenting more than one inventive step attack. Therefore, one should not overestimate the practical relevance of this decision, in particular for the appeal stage. This is even more so because several recent decisions rather point in the opposite direction, supporting a more liberal approach for the choice of the starting point for the assessment of inventive step.

    Albeit in a somewhat unusual context, the criteria for the determination of the closest prior art were put to a test in T 405/14. In this case, the Appellant argued that the skilled person would never start from document D2 when document D1 was available. This argument relied on the view that document D1, in addition to sharing many features with the claimed invention, also addressed the same problem as the invention, which was (arguably) not the case for D2.

    [...]

    This would then no longer be so different from the inventive step approaches taken by at least some national courts in EPC member states. In Germany, for example, the concept that there is a preference of a “closest” prior art and that the examination of inventive step can be stopped once it has been shown that the invention is not obvious starting from the “closest prior art”, has long been dismissed and criticized. The prevailing opinion in Germany is that inventive step must be present vis à vis the entire prior art and should not depend on the choice of the starting point in an individual case.

  2. BREAKING: Kymab caught the mouse as sufficiency strengthened by UK Supreme Court in Regeneron battle ([2020] UKSC 27)

    The UK Supreme Court today found Regeneron’s valuable antibody platform technology patents invalid for insufficiency. In doing so, the UK Supreme Court overturned the Court of Appeal decision and confirms the strong sufficiency requirement in the UK. The Supreme Court decision places emphasis on the principle of sufficiency that a patent claim should be enabled across its whole scope. As summarised by the UK Supreme Court itself, the Court of Appeal reasoning was seen as increasing the rewards obtainable by inventors in a complex, rapidly developing field like genetic engineering. The Supreme Court found in a majority ruling that the Court of Appeal swayed the balance too much in favour of patentees in a way that was not warranted by UK or EPO law. The full UK Supreme Court judgment can be read here.

    [...]

    In a majority judgment, the UK Supreme Court found the Court of Appeal’s reasoning logically sound, but ultimately considered it to be inconsistent with the UK and EPO law on insufficiency. In particular, the UK Supreme Court understood the principle that a patent should enable substantially all products within the scope of a claim at the priority date to be part of the bedrock of both UK and EPO law. In the words of Lord Briggs, who led the majority judgment, “[t]o water down that requirement would tilt the careful balance thereby established in favour of patentees and against the public in a way which is not warranted by the EPC, and which would exceed by a wide margin the scope for the development of the law by judicial decision-making in a particular Convention state”.

    The Supreme Court thus did not think the patent bargain was satisfied if the benefits of an invention could only be realised after the priority date, if and when all embodiments within the range could be made. Kymab’s appeal was therefore upheld, and the Regeneron patents found invalid for insufficiency.

    In a dissenting view, Lady Black first noted agreement between the Court of Appeal and Supreme Court on the legal principles. For Lady Black, the two courts disagreed in the application of these principles to the case in question. Contrary to the Supreme Court majority, Lady Black agreed with the Court of Appeal that the invention related to a broad general principle, that this principle was employed in all mice across the range of the claim, and that the patent should be rewarded by a commensurate broad scope of protection.

    A key part of the UK Supreme Court judgment are the “principles of sufficiency” provided on paragraph 56. According to principle vi)

    “the patentee has to demonstrate in the disclosure that every embodiment within the scope of the claim has been tried, tested and proved to have been enabled to be made. Patentees may rely, if they can, upon a principle of general application if it would appear reasonably likely to enable the whole range of products within the scope of the claim to be made. But they take the risk, if challenged, that the supposed general principle will be proved at trial not in fact to enable a significant, relevant, part of the claimed range to be made, as at the priority date” (emphasis added).

  3. Kymab holds off Regeneron in patent fight on home turf

    Chalk one up for antibody maker Kymab. The U.K. Supreme Court invalidated a pair of Regeneron patents around antibody-producing mice, putting to rest a lawsuit Regeneron filed against Kymab seven years ago.

    Known as patents ‘287 and ‘163, or the “Murphy patents,” they sought to cover genetically modified mice that contain chimeric human-mouse antibody genes, as well as human antibodies made using those mice. Regeneron sued Kymab in U.K. High Court in 2013 alleging that its Kymouse technology infringed patents covering its Velocimmune platform.

    The Supreme Court upheld 4-1 the decision of a High Court from 2016 to revoke Regeneron’s claims, reversing an Appeals Court’s verdict that the patents were valid.

    [...]

    The U.K. verdict is just the latest in a string of decisions that have come down on Kymab’s side. In April, the U.S. Patent and Trademark Office’s Trial and Appeal Board shut down a request from Regeneron to invalidate four Kymab patents. And that decision followed similar ones from patent offices in Japan and Australia—the Japanese Patent Office upheld Kymab’s patents in unappealable decisions, while IP Australia rejected Regeneron’s opposition to a Kymab patent on all grounds. Regeneron has appealed the latter decision.

    For its part, Regeneron emphasized that the Supreme Court decision applies only within the U.K.

    “The decision renders the two patents invalid and revoked in the UK only. Regeneron’s rights concerning these patents in other European jurisdictions remain in full force and effect,” the company said in a statement. “The 287 patent validity was upheld at the Europe-wide level by the Technical Board of Appeal of the European Patent Office (“EPO”) in 2015, and the 163 patent validity was upheld by EPO Opposition Division in 2018. Proceedings before the EPO’s Technical Board of Appeal on the 163 patent are ongoing.

06.17.20

Germany Has a Major Constitutional and Reputational Crisis Due to Team UPC

Posted in Courtroom, Deception, Europe, Law, Patents at 9:22 pm by Dr. Roy Schestowitz

All the ‘lobbyism’ has revealed the German republic to be little better than some ‘third-world’ countries or ‘Trumpland’

The drill team

Summary: When BMJV is willing to go ahead with something which is unconstitutional (UPCA was already intercepted by Germany’s constitutional court) it says more about BMJV than about the true prospects of the UPC, which for a variety of reasons remains dead in the water

THE MEDIA may not be saying much about it, but comments in this post (likely fluff from Bristows) include: “Why is the ministry not doing a public consultation? A public consultation was apparently denied in the past by some CDU or CSU member of the Bundestag who then became a judge on the Stjerna complaint. What a coincidence.”

We wrote about this several times before.

The same person later added: “The legal arguments raised there [in Belgium] were that the EPO cannot be sued for maladministration (rule of law, art2 TFEU), the discrimination of languages (difference of treatment between french and dutch speaking companies) and equality before the law (legally binding for french speakers vs non-legally binding for dutch speakers). The language of the defendent under the UPC can also be forced, which seems to be contrary to some international treaties. Any ideas which treaties are covering this problem?”

Another person said: “If the German Government – as a major driver behind the reform – wants to stand the slightest chance of bringing the UPCA in force in unamended form, it must happen before the UK finally leaves the EU, currently envisaged for the end of this year. After this has taken place, amendment becomes plainly inevitable. They know that any UPCA revision will require highly unwelcome concessions from their side, causing them to beat this dead horse as if there was no tomorrow.

“Part of the problem is that many of the individuals involved have a personal stake in the fate of the UPCA as it stands, be it of a merely financial nature, be it career prospects, be it both. As long as the major decisions are made by the always same people, who also bear the responsibility for what has happened so far and are thus strongly biased towards the one particular outcome serving their needs, unlikely as it may be to achieve it, reason will have no place in this.”

“Concerned observer” then wrote: “So let me summarise. The German government passes a law that the BVerfG voids the grounds of unconstitutionality. Subsequently, a written question is submitted to the European Commission, asking them to confirm whether CJEU case law precludes Germany from ratifying the UPC Agreement. The German government responds to all of this by presenting a draft law that the BVerfG has very clearly warned would also be unconstitutional. In other words, the German government has decided to press on despite very clear reasons to believe that the end goal would be unlawful. And all of this carried out in public, where an informed (and, in parts, highly sceptical) profession can clearly see what is going on. You have got to hand it to the persuasive powers of those pro-UPC lobbyists!”

The same person later added: “To quote the BMJV’s statement: “Es kann aber nicht so verstanden werden, dass es einen Kammerstandort in einem Nicht-Vertragsmitgliedstaat errichten beziehungsweise belassen möchte”. (“It cannot, however, be understood to mean that it wishes to establish or maintain a chamber in a non-contracting Member State”)

“This statement is clearly contrary to the position adopted by the BMJV between the Brexit vote and issuance of the UK government’s statement regarding non-participation in the UPC. However, it also makes no sense.”

“Each participant to the UPC Agreement is designated as “Contracting Member State”. Thus, a NON-“Contracting Member State” is simply a State that is not party to the UPCA. The BMJV’s statement is therefore based upon the false premise that the UK is no longer a “Contracting Member State” to the UPC Agreement.”

“It is so unbelievably disappointing to see such misdirection and misrepresentation emanating from a body that is supposed to be tasked with upholding the rule of law in Germany. Frankly, this has all of the makings of a major scandal.”

The reply said: “Why overlook the wording “Member State”? The UK cannot be a Contracting Member State any longer for the simple reason that it is not a Member State.”

MaxDrei said: “You only realise how precious was The Rule of Law after you have dumped it.”

He later also said: “The irony is that the UPC as presently constituted will help non-European corporations to dominate the European market, more than ever. Just look at what has happened with the EU Registered Designs regime.”

There’s lots more in those 27 comments. “Comments are closed.” The final comment said: “In case you hadn’t realised, most freedom of information legislation includes exemptions for information relating to … wait for it … international organisations …

“And the EPO is an international organisation.

“So the BMJV has a perfect get-out-of-jail card to prevent any embarrassing disclosures on that front.”

Benjamin Henrion dumped in this meme, having written a couple of FFII pages about a looming complaint, which hours ago he told me he was seriously pursuing. He says “we will launch a crowdfunding campaign to sack the UPC in Germany” and at this moment “I am looking at which “platform” to use…” (asking for recommendations)

A meme by Benjamin Henrion
A meme by Benjamin Henrion

Myles Jelf (Bristows) has just mentioned this. Why does Bristows mention something like that? One wonders….

The FFII (Foundation for a Free Information Infrastructure) has published a press release commenting on the German government’s consultation on a new draft bill to enable Germany to ratify the Unified Patent Court (UPC) Agreement (reported here). The FFII lists problems that it considers arise with the unitary patent and UPC system, and maintains that if Germany ignores those problems “there will be a second constitutional complaint filed immediately”.

Our understanding is that Stjerna would follow up as well. So the whole thing would end up being a stain on the name of BMJV. No, we don’t expect BMJV to succeed, except in soiling or spoiling what's left of its reputation.

05.18.20

Constitutional Court’s Justice Huber Reaffirms Substantial Concerns About Viability of the Unitary Patent/UPC

Posted in Courtroom, Europe, Law, Patents at 7:03 pm by Dr. Roy Schestowitz

Before JoJo's, after JoJo's: Rejection based on formality, Rejection based on substance

Summary: If UPC wasn’t already dead in the water, now we have another blow to push it down under because, as per a new interview, the “Constitutional Court’s reservations against the UPC Agreement are not limited to the formal errors which were made when passing the German ratification act in parliament. Rather, it appears that the court’s concerns also relate to the substance of the UPC Agreement.” (To quote Dr. Simon Klopschinski)

WHEN THE European Patent Office (EPO) spoke of the outcome of the FCC complaint back in March it merely quoted António Campinos cherry-picking a ludicrous political statement, in effect parroting an outrageous lie. It took the EPO more than a week to come up with that spin — something we had become accustomed to in the Benoît Battistelli days.

“Not a single blog posts in almost 2 months…”Almost nobody talks about the UPC anymore. The Daily Links from yesterday included an article we had missed from about a month ago — basically more lies from core Team UPC people. In May the UPC is hardly even named. It’s presumed dead except when they come up with ridiculous spin — distortion of facts designed to make it seem like the UPC still stands a chance. We’ve seen it all before. Bristows did that every week. Now? Not a single blog posts in almost 2 months…

Radio silence.

Hours ago, published via Thomas Musmann (Rospatt Osten Pross) was this relatively short post by Dr. Simon Klopschinski. In it there’s an English translation of relevant German text and it says:

On February 13, 2020 the German Federal Constitutional Court decided that the German law ratifying the Agreement on a Unified Patent Court is void (see here). In the meantime the Constitutional Court has issued another sentence which deals with the European Central Bank’s bond-buying programme (see here). On May 13, 2020 the daily newspaper Frankfurter Allgemeine Zeitung (FAZ) published an interview with Judge Huber, who was involved in both proceedings as judge rapporteur, on the ECB decision, in which Judge Huber also commented on the court’s UPC verdict.

In its ECB decision the Constitutional Court decided that it was not bound by a previous CJEU ruling. Therefore, the European Commission is currently thinking about initiating infringement proceedings against Germany under Article 258 TFEU. When asked by FAZ on this issue Judge Huber made the following comment on the primacy of EU law and the court’s UPC verdict…

[...]

In its decision of February 13, 2020 the Constitutional Court had left open the question whether the unconditional primacy of EU law, as stipulated in Article 20 of the UPC Agreement, violates the German constitution, even though the court held that there may be indications for such a finding (see para. 166 of the decision).

Judge Huber’s comment in the FAZ reaffirms that the Constitutional Court’s reservations against the UPC Agreement are not limited to the formal errors which were made when passing the German ratification act in parliament. Rather, it appears that the court’s concerns also relate to the substance of the UPC Agreement. Thus, if the second attempt to ratify the UPC Agreement is confined to organizing the required two-thirds majority in parliament (and some formal rectifications due to Brexit), the fate of the UPC Agreement in another constitutional complaint before the Federal Constitutional Court will remain uncertain.

“Concerned observer” soon added a comment to say: “It will be interesting to see how the question regarding the unconditional supremacy of EU (case) law is resolved with regard to Germany. One option might be to amend the Basic Law … but that might not help in all cases as it is hard to see how such an amendment could apply retroactively. However, perhaps of more immediate interest will be whether, despite the clear views expressed by the FCC, any of the UPC’s supporters will continue to lobby the German government to pass legislation enabling ratification of the UPC Agreement. The answer to this is likely to depend upon whether those supporters are prepared to actively encourage the German government to pass a law that would almost certainly be unconstitutional.”

“Justice Huber’s words can be interpreted as another nail on the UPC coffin.”Benjamin “NO Software Patents” Henrion (FFII) repeatedly told me something to that effect, citing nothing but unsourced rumours. “I have the impression that the German Government will mull the UPC through the Bundestag, ignoring Brexit, in order to get the UPC into force. And “fix it” afterwards,” he eventually wrote in Twitter. “Rumour that UPC will be back for a vote in front of the Bundestag soon #upc #Germany despite a clear violation of AETR and the UK being in,” he had said earlier. However, there’s no actual evidence of that and the above article from Dr. Klopschinski makes it more apparent that even if the Bundestag pulled a fast one it would not suffice.

Unfortunately, to us at least, the EPO still grants illegal software patents in Europe. Today’s patent courts reject those, but how many can afford the legal battle/s? Ideally we can put an end to all these ludicrous patents. As for the UPC? It’s a dead end. Justice Huber’s words can be interpreted as another nail on the UPC coffin.

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