Bonum Certa Men Certa

The Latest Lies From the EPO (Regarding Quality) and the Reason the UPC Won't Happen (Any Time Soon at Least)

Heiko Maas saleSummary: Lies are being intentionally spread inside the EPO (from the management downwards) and sobering reality about the UPC gradually sets in

THE chaotic state of the EPO is less visible throughout the summer when most people are on holiday, but the ugliness and the manipulation persist. Earlier today someone said anonymously but in public: "There is a new article on the EPO intranet about the quality of searches and examination. Curiously, in the era of windowless hairdresser salons, the department responsible for quality control reports that quality of the EPO has never been higher. But one has to read a bit further to understand: TIMELINESS is a big part of quality and the EPO is issuing search reports and examination faster than ever. Apparently, the content of the search or examination is of little interest to the department responsible for quality control, important is that they are out fast!"



Can anyone please leak this to us?

"There's a true danger that's already materialising, namely low-quality patents for trolls to go crazy (or run amok) with."EPO management lies, internally, to all the staff; yet again! How long can this go on for? The EPO's examiners are clever people. They're not this gullible and they know the impact of mounting pressure on their work.

There's a true danger that's already materialising, namely low-quality patents for trolls to go crazy (or run amok) with. They are soaring (double-digit growth) in Germany, for instance, and some have come to the UK. This is good for nobody except patent law firms and their aggressive clients. The UPC would only exacerbate such problems (if it ever became a reality), yet the patent microcosm's front group in France, together with Benoît Battistelli, seems very eager to push forth this menace. They don't care about European industry, only about themselves (the litigation 'industry').

"The UPC looks more and more like it is dead because the British government refuses to discuss it..."Incidentally, a reader informed us today regarding "JUVE Patent - UPC Special 2017" -- yet another one of those pushes from the patent microcosm or Team UPC.

"I thought this new law firm sponsored 24-pager on the UPC was something you might be interested in," our reader said regarding this finding (link to JUVE Patent). "You will be navigated to the JUVE web app and the JUVE Patent publication will be displayed. For further instructions please read here" [PDF]

And indeed, that's just what it is: UPC marketing. We followed the links and got it.

The UPC looks more and more like it is dead because the British government refuses to discuss it (the patent microcosm calls it a "delay" as if it's inevitable) and even a German UPC booster (self interest, knowing that patent trolls are quickly becoming a headache to German companies) has just said: "„Member state“ is mentioned how often in the text? >100 times? Yes, you could say that amendments might be necessary #UPC" (because the UK won't be a member state anymore).

"Considering the stance on the UPC from German Justice Minister Heiko Maas, this might be indirectly connected to them turning a blind eye to EPO scandals."Then there's the German barrier to the UPC. SUEPO has just published a translation of this article (published a fortnight ago) and it blames, in part, Battistelli's attack on the structure of the EPO -- a subject we'll deal with also in our next post.

Here is the full translation as HTML:

Unified Patent Court: Unknown complainant puts the brakes on ratification



Published on: 13 July, 2017

Worst Case Scenario: The people involved actually wanted the Unified Patent Court (UPC) to come into being before Brexit, but ratification by Great Britain and Germany was still not forthcoming, and the laws needed had still not been passed. Now that Great Britain has agreed, and the Bundestag has given the go-ahead (which effectively paves the way for the UPC), an unknown complainant has lodged opposition before the German Constitutional Court – and that puts the ratification process back on ice.

An unknown complainant has lodged opposition before the German Constitutional Court to put a stop to the ratification of the Unified European Patent Court, which has been years in the planning. What grounds have been put forward by the complainant are, up to now (07.07.2017), also unknown. The complaint before Germany’s highest court is a kick in the teeth for the creation of a unified patent legislation in the European Union. Brexit set back the test phase by several months, which was due to start this year, and the constitutional complaint has thrown an even bigger spanner in the workings of the timetable.

Federal Constitutional Court asks Federal President Steinmeier not to sign off on ratification

The last of the three national laws needed were passed just recently by the Bundesrat and Bundestag. That meant the national legislative process had almost been completed. The last step would have been the implementation law coming into effect with the signature of Federal President Frank-Walter Steinmeier. But at the behest of the Federal Constitutional Court (BVerfG), so far he has still not signed. This gives the Court the time to look into an emergency plea pending against the implementation law. It now turns out that as far back as 31 March an unknown private individual lodged a constitutional opposition. And not only against the national law, but also the agreement itself (File Ref. 2 BvR 739/17). The Frankfurter Allgemeine Zeitung (FAZ) carried the story in an article on 12 June.

Unified Patent Court: The reason for the move?

The fact that the reasons for the move have not yet been officially made known means that there is a lot of speculation about what has gone awry with the workings of the law and the agreement. One of the reasons could be the reservations about the constitutional legitimacy of proceedings held before the European Patent Court, which sits in Munich. The problem is that the Executive (implementing the law) and the Judiciary (creating the law) were at one location and, in particular, had one and the same presiding person – EPO President Benoît Battistelli. Battistelli, who stands at the head of the administration and of the court division of the EPO, is said to have a personal and factual influence on the Executive and the Judiciary. And that means the investigation of EPO decisions by an independent court is not possible, or only with great difficulty.

The EPO has already had to field a lot of criticism on that count. Last year it was announced that one of the divisions was going to be relocated, so as to achieve at least a spatial separation. Among other things, the press release revealed that “The move to another service building is therefore an important step in the efforts in safeguarding the EPO opposition system in the long term, and sustaining its strength”, and “Up to now, the Boards of Appeal have been accommodated in the main EPO building on the River Isar. The expansion of their organizational independence has always been an object of discussion. Administrative autonomy of the Boards has repeatedly come up for debate at the Administrative Council.”

The putative move, which is supposed to take place within the next few months, could however also be interpreted to mean that the President is giving his critics less room for attack and at least wants to provide a sign of this by way of the separation. With regard to the institutional constitution of the Office, it will make no difference at all. Putting it bluntly: New location, same old hierarchy, same old way of working.

“Request” from the Federal Constitutional Court implies good chances of the complaint succeeding

The Federal President’s Office has confirmed that the President, “at the request of the Federal Constitutional Court of 3 April 2017, has postponed the scrutiny procedure of the approval law”. The “request” is said to have been made first orally and then in writing. (Text quotation from FAZ article)

It is a rare event for the Federal Constitutional Court to make a request directly to the Federal President. But it gives the Court one thing above all else – time. Not only has a complaint been lodged, but in parallel also a plea for urgency, which on the one hand directly affects the future law for the Patent Court, but also the patent law reform itself.

And anyone can see that a massive project like this won’t be decided in just a couple of days.

We are reckoning on a decision in late summer at the earliest. Until then, the efforts to establish the UPC and have it ratified remain where they are – on ice.


We wrote about that a week ago. We'll revisit the subject as soon as we are done with the next batch of Lufthansa-EPO exposés. Considering the stance on the UPC from German Justice Minister Heiko Maas, this might be indirectly connected to them turning a blind eye to EPO scandals.

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