Bonum Certa Men Certa

EPO Scandals Played a Considerable Role in Sinking the Unified Patent Court (UPC)

Inability to maintain the reputation and perception of justice at the EPO is proving fatal


"Dialogue" like telling the Appeal Boards to sack their colleague, a judge called Patrick Corcoran?
Original: Presidential candidates set out their vision for the EPO | full article (copy)



Summary: Today's press coverage about the UPC reinforces the idea that the EPO saga, culminating in despicable attacks on Patrick Corcoran (a judge), may doom the UPC once and for all (unless one believes Team UPC)

THE UPC isn't going ahead, no matter what media may be trying to tell us. Some of that media is literally paid for UPC advocacy. It has been promising or heralding the UPC for a number of years, but it was wrong every time. They are trying to sell outcomes, not information.



To get an idea of what patent professionals think, look at comments. Right now, for example, virtually all the comments about it in Kluwer Patent Blog are negative (13 comments so far, with the author trying to contain the damage after his late Friday 'Molotov'). That speaks for itself really. So do the comments (so far) in this morning's coverage from The Register. "Good news for UPC advocates, bad news for EPO staff," says the summary. Well, "UPC advocates" being Team UPC and "good news" being an odd term because the views of Tilmann at el were so predictable that it's not even news (he already expressed these same views in Kluwer Patent Blog, only to be promptly slammed in the comments). The article is noteworthy for the parts which cover EPO scandals and their relevance to the perception of justice. Quoting the author who is very much familiar with these matters:

To date, it appears that there are three main issues: that it was not properly voted on; that Brexit changes things; and that "reforms" at the European Patent Office (EPO) have undermined the independence of the system.

[...]

That will be a bitter pill for many critics of the EPO who have been outraged in recent weeks that one of those independent judges – Patrick Corcoran – was not reappointed to the EPO's Boards of Appeal even after he successful won his case against EPO management.

[...]

The bad news is that there appears to be no larger constraint on the EPO's appalling behavior towards its employees. In fact, the decision may even embolden EPO management to continue its campaign of harassment against staff knowing that there is no organ that can hold it to account, or even punish it for its actions.


The ethical abyss at the EPO has cost UPC its viability. What kind of court, seeing what goes on at the EPO, would give the EPO 'unitary' scope (or effect)? That would be irresponsible and reckless. There are ethical issues at play, not just legal or technical.

Over at Patently-O, which has a section on ethics (run by David Hricik*), a new blog post has been published about patent scams. As Hricik put it some days ago:

I love this case because it has lessons for ethics, drafting, and civil procedure.

The holding is pretty simple: an inventor who signs an employment agreement that provides (a) she “will assign” rights to inventions doesn’t then assign them; (b) that she “holds in trust” those rights doesn’t mean she assigns them; and (c) that she “quit claims” those rights doesn’t mean she assigns them. Two judges so held (O’Malley and Reyna), and Judge Newman dissented relying on the “intent” of the contract. The case is Advanced Video Tech. LLC v. HTC Corp. (Fed. Cir. Jan. 11, 2018), here.


We have covered several examples of this over the years. It's misconduct, yet it's rarely punishable. There are variants to this kind of misconduct and it always serves to discredit the USPTO. When patent offices fail to maintain their reputation and adjunct courts tolerate it (or cannot challenge the offices), there's a high cost. The UPC is Europe's example of it. ______ * Hricik's blog posts, unlike Crouch's, are typically OK. He now has this new paper (PDF; via) about the US Supreme Court (SCOTUS) -- a paper in which he asserts that "patent rights have been weakened through changes in the law [which] effectively eliminates the presumption of validity. Other changes including heightened pleading requirements and state statutes also reduce the coercive benefit that patents confer."

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