IRC: #techbytes @ Techrights IRC Network: Saturday, October 22, 2022

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<h5><a href="https://www.freebsd.org/status/report-2022-07-2022-09/">FreeBSD Quarterly Status Report Third Quarter 2022</a></h5>

-TechBytesBot/#techbytes-www.freebsd.org | FreeBSD Quarterly Status Report Third Quarter 2022 | The FreeBSD Project

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<p>Here is the third quarterly report for year 2022, with 24 reports included, which is slightly fewer than last quarter.</p>

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<p>I notice that in the past we had quarters with many more reports: often more than 30, sometimes even more than 40. Thus I would like to encourage all of you to submit reports: reports are useful to share your work, to find help, to have more eyes reviewing your changes, to have more people testing your software, to reach a wider audience whenever you need to tell something to all of the FreeBSD community

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and in many other cases. Please do not be shy and do not worry if you are not a native English speaker or if you are not proficient in AsciiDoc syntax: the quarterly team will be glad to help you in whatever you need.</p>

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<p>On the other hand, if you really do not have anything to report, then maybe you might like to join one of the interesting projects described below, or you might be inspired from one of them to do something new, thus having something to report in the future.</p>

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<p>We wish you all a pleasant read.</p>

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<p>Lorenzo Salvadore, on behalf of the status report team.</p>

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</blockquote>

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-TechBytesBot/#techbytes-rakudoweekly.blog | 2022.42 Grep no Fear – Rakudo Weekly News

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<p>Elizabeth Mattijsen has published an introduction into the Raku Programming Language by means of the grep functionality, called Don’t fear the grepper! (Part 1), the first of hopefully a long series of easy to read, yet in-depth exposition of Raku features. And they also published the second instalment of the It’s time to rak! series, about the rak utility.</p>

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</blockquote>

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Oct 22 14:40

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Attentive Observer

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October 21, 2022 at 9:20 pm

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Dear Thorsten,

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You are not the only one having concerns about part-time judges.

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In other publications on this blog, Concerned observer has brought forward similar concerns.

http://patentblog.kluweriplaw.com/2022/10/21/klaus-grabinski-and-florence-butin-presidents-of-the-unified-patent-court/

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As far as the question of part time judges is concerned, I would like to add the following.

-TechBytesBot/#techbytes-patentblog.kluweriplaw.com | Klaus Grabinski and Florence Butin Presidents of the Unified Patent Court - Kluwer Patent Blog

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“Marketing” their judicial roles by part-time judges should be absolutely prohibited.

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In view of the part-time participation of judges, a high number of recusals of such part-time judges is to be expected. It is thus not only necessary to provide very strict rules governing conflicts of interest, but also a mechanism by which recusal of legal and technical judges will be possible.

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It is doubtful whether the provisions of Art 7(3-5) of the Statute are sufficient in these respects.

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Art 7(3) deals with self-recusal or a decision of the chair of the court of first instance or the court of appeal considering that a judge should not sit or make submissions in a particular case.

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Art 7(4) deals with recusals and does not say much.

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Art 7(5) provides that any difficulty arising as to the application of Art 7 shall be settled by decision of the Presidium.

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At least at the boards of appeal EPO there are much clearer rules as to recusal.

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in any case the decision is not left to the chair or the Praesidium of the boards of appeal.

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It is also worth noting that according to Art 10 of the Statute a judge can be removed from office by decision of the Praesidium without the judge being offered any means of redress, besides the fact that he can be heard (which is a bare minimum). In how far such a rule is conform to the constitution of numerous UPC contracting states remains to be seen.

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In IP matters there very few countries in which part time judges are acting at least in first instance and not in appeal. One is the UK, the other one is Switzerland. Those are two countries which are not participating in the UP/UPC system.

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In part of France, commercial chambers are also using lay judges, but not for matters relating to validity of infringement of IP rights.

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Here again, it remains to be seen in how far the status of part-time judges is conform to the constitution of numerous UPC contracting states.

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It is possible that Belgium could also accepts part-time judges, but I am not sure.

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There is one former technical member of the boards of appeal of the EPO named in the pool of technical judges. One future former technical member has also be named in the pool. At least those two should have less conflicts of interests as part-time judges.

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As far as I can see, there are no former legal members of the boards of appeal which have been selected.

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It is ironical to see that most of the RPUPC have been inspired by the British system. And the UK has withdrawn its participation. Would it not have been wiser introduce some longer time limits as short time limits increase the pressure and costs, especially for European SMEs which are meant to benefit from the UP/UPC system.

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The UPC might be starting. We should however not forget the shoddy legal basis on which the whole UP/UPCA is standing.

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The UPCA has never been vetted by the CJEU, allegedly because nobody thought it!

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Even if the CJEU might not want to shake the whole construction, problems might occur when UPC decisions will have to be executed in EU/EPC member states.

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Too many manifest problems have been swept under the carpet, Art 7(2) UPCA to name one.

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It will be interesting to see how members of the Munich and Paris sections of the central division will justify their competence in cases relating to life sciences. In view of your professional experience, you are probably very much interested in this matter.

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Max Drei

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October 21, 2022 at 9:45 pm

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Two thoughts:

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1. England has judges at first instance who are “on secondment” as it were, from their “day job” as a barrister within chambers. Nobody supposes that they have a conflict of interest or are biassed. But it is different when a judge is on secondment from a big international patent attorney firm with long term client relationships with a high proportion of the world’s most innovative mega-corporations. There, the potential for conflicts of

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interest and divided loyalties is exponentially higher. Can we dismiss it as unecessary worry? The enthusiastic “marketing” efforts of the firms from whom the judges are drawn is prompting more cynicism. A ban on it sounds fine but in practice will, I suspect, achieve precisely nothing.

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2. Some of us were cynical from the get-go about the usefulness of the UPC to anybody other than the mega-corporations and their fancy international private practive legal advice firms. Have we seen anything in the last few months to reduce that cynicism? I’m not aware of anything. On the contrary, sorry to say. My feelings of cynicism just got boosted.

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Spezlwirtschaft anyone?

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October 21, 2022 at 10:35 pm

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I would go a step further here:

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The head of IP of Airbus is designated as a technical judge. So Airbus will not be able to be a party in proceedings before the UPC.

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After all, when judges decide about a case where a party is the employer of their colleague, who would think they are impartial? And the UPC judges who are at the German courts or the patent office will also have to recuse themselves from cases with Airbus in their “main” jobs, I think…

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Similarly, when a patent attorney is a technical judge, I don’t think that his patent law firm partners can practice before the UPC. After all, again, the UPC judges would not (appear to) be impartial, when a partner of their colleague is working on a case…

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So, Mr. Bausch, I think your decision is good, you can still act before the UPC (unless one of your partners is a judge there?)!

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Attentive Observer

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October 22, 2022 at 4:43 am

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Dear Max Drei,

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The cynicism is not coming from those having a critical view on the UP/UPC system, but from the staunch supporters of said system.

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They want to push their vision of patents and their (ab)use down the throat of European society. The best example of that cynicism is to claim that the UP/UPC system is for the benefit of the European industry and especially European SMEs. This is a blatant lie! It is for the benefit of “mega-corporations and their fancy international private practice legal advice firms”.

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In a French legal publication one of those supporters, Mr Casalonga, had the nerve to call those not supporting the UP/UPC system liars, hypocrites and against progress. Can you get less cynical than that?

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Adam Brown

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October 22, 2022 at 11:00 am

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That was the same criticism for ISDS tribunals, judges in the morning, lawyers in the afternoon.

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Boosters will find a way to argue both jobs are compatible.

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Millipede

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October 22, 2022 at 11:44 am

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In the Netherlands the principle of ‘substitute’ judges is well known and also the specialized patent courts, both the first instance and the appeal court, have recruited in many, if not all cases judges coming from the specific field of interest. In 2013, however, it was decided that the courts should no longer employ persons that were still professionally active (and which possibly also could show up before the courts of which they were part).

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So this meant that practicing lawyers and patent attorneys were no longer able to sit on the court, unless they refrained from their active jobs, I.e. they should remove themselves from the list of representatives.

http://patentblog.kluweriplaw.com/2022/10/21/the-upc-hopes-and-headaches/

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-TechBytesBot/#techbytes-patentblog.kluweriplaw.com | The UPC - Hopes and Headaches - Kluwer Patent Blog

> http://patentblog.kluweriplaw.com/2022/10/21/the-upc-hopes-and-headaches/ <http://patentblog.kluweriplaw.com/2022/10/21/the-upc-hopes-and-headaches/>

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We need to make some more noise :-)

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It's not over.

> http://patentblog.kluweriplaw.com/2022/10/21/the-upc-hopes-and-headaches/ <http://patentblog.kluweriplaw.com/2022/10/21/the-upc-hopes-and-headaches/>

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We need to make some more noise :-)

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It's not over.

http://patentblog.kluweriplaw.com/2022/10/21/klaus-grabinski-and-florence-butin-presidents-of-the-unified-patent-court/

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-TechBytesBot/#techbytes-patentblog.kluweriplaw.com | Klaus Grabinski and Florence Butin Presidents of the Unified Patent Court - Kluwer Patent Blog

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Jan Van Hoey

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October 21, 2022 at 1:25 pm

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Mr Grabinski was active in the Working Group that wrote the Rules of Procedure (RoP), should there be a rule of seperation of powers that the executive should not write its own rules?

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Concerned observer

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October 21, 2022 at 6:33 pm

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An interesting point, and one to which I would say that the answer is “yes”.

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In G 1/21, the EBA excluded their Chair, on the grounds that his prior involvement in the making of rules precluded him from ruling on the interpretation of those rules. Sadly, this was not based upon rules governing a separation of powers, but instead upon the fact that the Chair’s rule-making role gave rise to an objectively justifiable fear of partiality.

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It would be extremely disappointing if the UPC did not (at least effectively) enforce a strict separation of powers in what seems to be an equivalent situation.

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Concerned observer

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October 21, 2022 at 2:11 pm

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Whilst the level of excitement seems to be growing in certain circles, I cannot help but wonder the extent to which those circles are paying attention to the views of the “average” patent applicant, and of SME applicants in particular.

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There is no doubt that, for many patent holders, the UPC will achieve the precise opposite of what its proponents promised to deliver. That is, it will make patent litigation in Europe:

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i) more complicated (not least by adding a new, completely independent court into the mix of national and EPO instances that will deliver decisions on the provisions of the EPC);

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ii) far less predictable (with uncertainties, including over the applicable law(s) of infringement, being far too many to mention);

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iii) harder to manage (in view of the astonishingly short deadlines); and

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iv) far more expensive for all litigants (except perhaps those that previously would have run multiple, parallel cases in Participating Member States).

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This is before one even considers uncertainties relating to whether the whole set-up is unlawful / unconstitutional (again, on grounds far too numerous to mention).

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Thus, whilst I understand the excitement involved in breathing life into a new system, it strikes me that very little attention is being paid to its extremely serious shortcomings.

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In this regard, whilst I can see that there may have been little choice to do otherwise, the selection of so many judges that will continue their separate employment as patent litigators / attorneys does point to an immediate need for the UPC to establish VERY strict rules governing conflicts of interest. It also begs the question of how the UPC will handle the possibility that certain attorneys / litigators (or their firms) may seek to entice

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clients by “marketing” their judicial roles. Food for thought indeed.

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Sharing concerns

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October 21, 2022 at 6:37 pm

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I share your doubts/objections/concerns.

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The double role of judge and patent attorney/lawyer is of special concern. How can one be certain they they is no direct or indirect conflict of interest or benefit from one role for the other? Some IP law firms are already advertising that their attorneys are on the list of judges, on their website or on LinkedIn…

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Patent robot

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October 21, 2022 at 3:29 pm

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Who are the judges of the UPC section in London?

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Sharing concerns

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October 21, 2022 at 6:39 pm

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They Br-Exited.

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Waiting to be moved to Milan I guess.

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Attentive Observer

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October 21, 2022 at 8:30 pm

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I can only but support the last entry of Concerned observer.

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As far as the question of part time judges is concerned, I would like to add the following.

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“Marketing” their judicial roles by part-time judges should be absolutely prohibited. this should have been settled in the Statute.

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It is doubtful whether the provisions of Art 7(3-5) of the Statute are sufficient in these respects.

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Art 7(3) deals with self-recusal or a decision of the chair of the court of first instance or the court of appeal considering that a judge should not sit or make submissions in a particular case.

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Art 7(4) deals with recusals and does not say much.

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Art 7(5) provides that any difficulty arising as to the application of Art 7 shall be settled by decision of the Presidium.

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At least at the boards of appeal EPO there are much clearer rules as to recusal.

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in any case the decision is not left to the chair or the Praesidium of the boards of appeal.

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In part of France, commercial chambers are also using lay judges, but not for matters relating to validity of infringement of IP rights.

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Here again, it remains to be seen in how far the status of part-time judges is conform to the constitution of numerous UPC contracting states.

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It is possible that Belgium could also accepts part-time judges, but I am not sure.

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Sharing concerns

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October 21, 2022 at 9:45 pm

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Will there be a listing for all part-time judges of their other jobs, their clients, etc so third parties can check possible conflict of interest?

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Attentive Observer

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October 22, 2022 at 4:49 am

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It is to be feared that it will be like for MPs. Did you ever see a list of the jobs and clients they get income from next to their wages as MPs?

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Did you ever see a list of all the lobbies trying to influence MPs and their contacts with the latter?

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Nope!!

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Why should it be different here?

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