Bonum Certa Men Certa

Bavarian State Parliament Has Upcoming Debate About Issues Which Can Thwart UPC for Good

Bavarian State Parliament due to debate motion about the EPO Boards of Appeal

Bavarian State Parliament debate



Summary: An upcoming debate about Battistelli's attacks on the EPO Boards of Appeal will open an old can of worms, which serves to show why UPC is a non-starter

A preliminary discussion is scheduled to take place at the next sitting of the EU Affairs Committee of the Bavarian State Parliament at 12:30 on Tuesday 20 February 2018.



It is expected that the motion will then be forwarded for a debate before a plenary session of the Parliament some time within the next couple of weeks.

An image of the motion (in German) is shown above along with an English translation below.

Bavarian State Parliament

17th Parliamentary Term 06.02.2018 Printed matter 17/20577

Motion

Dr. Hubert Aiwanger, Florian Streibl, Prof. (Univ. Lima) Dr. Peter Bauer, Dr. Hans Jürgen Fahn, Thorsten Glauber, Eva Gottstein, Joachim Hanisch, Johann Häusler, Dr.. Leopold Herz, Nikolaus Kraus, Peter Meyer, Prof. Dr. Michael Piazolo, Bernhard Pohl, Gabi Schmidt, Dr. Karl Vetter, Jutta Widmann, Benno Zierer and parliamentary group (FREIE WÄHLER)

Safeguard the independence of the Boards of Appeal at the European Patent Office

The State Parliament wishes to adopt the following resolution:

The State Government [of Bavaria] is called upon to advocate at federal and European level the adoption of measures within the European Patent Office to safeguard the independence of the Boards of Appeal and thus to ensure effective legal protection.

Explanatory statement:

A number of documented incidents, as set out below, raise serious doubts about the independence of the Boards of Appeal of the European Patent Office (EPO). The apparent loss of legal certainty requires action as soon as possible.

1. On 6 December 2017, the Administrative Tribunal of the International Labour Organisation (ILOAT) ruled that a judge of the Boards of Appeal who had been unlawfully suspended was to be immediately reinstated in his official position, that the house ban imposed on him was to be lifted and that compensation for damages was to be paid (Judgments Nos. 3958 and 3960). In doing so, the ILOAT confirmed that the involvement of the EPO President was detrimental to the independence of the Boards of Appeal, because he had acted as both party and advisor to the Disciplinary Body for the EPO judges in internal disciplinary proceedings. This gives rise to the criticism that insufficient attention was paid to the separation of powers in this regard. After all a suspension by the Administrative Council can only be formally take place if the Enlarged Board of Appeal makes a proposal to that effect. At the time in question, however, after the Office Administration had made a written intervention in the ongoing proceedings, the judicial body refused to do so due to this interference and terminated the proceedings without a proposal. Even after the Geneva judgement of December 2017, the Administration initially refused the unlawfully suspended judge access to the EPO premises. Only after some delay did the President of the Boards of Appeal grant the right of entry but his competence was limited to announcing this for the premises in Haar. Ultimately, the unjustly suspended judge was prevented from exercising his - intrinsically independent - judicial position until the end of his term of office.

2. Leading lawyers, such as the former Federal Constitutional Court judge Prof. Dr. Siegfried Broß, have long questioned the independence of the Boards of Appeal. For example, in an interview with the specialist journal JUVE on 29 October 2015, he pointed out that the Boards of Appeal could not be recognised as having the character of a court of law quality, given that there was an obvious overlap in terms of staffing between the President of the Office and the supervision of the Boards of Appeal. In the meantime, a reform of the Boards of Appeal was initiated by the summer of 2016 which resulted in the spatial separation of the Boards of Appeal by moving to Haar at the end of 2017. However, there was no fundamental change to the administrative structure: the President remains the head of both the administration and the Boards of Appeal. In this way, he continues to have influence both in terms of staffing and resources.

3. At least partly due to this background, there are a number of constitutional complaints against decisions of the EPO pending before the Federal Constitutional Court (BVerfG) in which the legal structure of the proceedings before the Boards of Appeal is alleged to be unconstitutional (see the BVerfG's Annual Preview 2017): Az. 2 BvR 2480/10, Az. 2 BvR 421/13, Az. 2 BvR 756/16, Az. 2 BvR 786/16). Without trying to anticipate a final court decision at this juncture, it at least deserves to be noted that, for diverse reasons, several complainants have had serious reservations from a constitutional perspective about the rule-of-law conformity of the proceedings and have thus felt compelled to submit their concerns to the Federal Constitutional Court. Accordingly, this development provides additional confirmation of the findings set forth under 1 and 2. A particular highlight in this regard is the recent request by the Federal Constitutional Court to the German President not to sign off the implementing laws for the European Unitary Patent. This occurred against the background of a successful application for a temporary injunction (Case No. 2 BvR 739/17), which is likely to raise concerns about the rule of law in proceedings before the EPO. Finally, the question of the independence of the Boards of Appeal will also have a significant impact on the proposed Unitary Patent should the EPO be entrusted with the issuing of patents with unitary effect despite the existing deficiencies in the system of legal protection.

The aforementioned shortcomings in this area clearly create considerable uncertainty because, it is feared that both definitively rejected patent applications and finally revoked patents can no longer be examined by independent judges. Hence, important fundamental questions arise about the constitutional conformity of the appeal structures in the EPO. This is why the state government must take appropriate action at federal and European level so that the existing deficiencies in the system of legal protection are redressed and the prestige of this international organisation is not subject to further damage.



They hopefully understand the importance and urgency of this matter.

Recent Techrights' Posts

Links 29/10/2025: "US Military Is Destroying the Planet Beyond Imagination" and Boat Strikes Deemed Unlawful
Links for the day
Quality Comes First (Techrights Search)
It's generally working already, but we wish to polish it some more
Techrights Party Countdown
Late next week we'll be holding a party near our home
European Parliament and Council Directive on Privacy is Vanishing
"edited / censored some time more recently"
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, October 28, 2025
IRC logs for Tuesday, October 28, 2025
Slopwatch: The March of Slopfarms, From UbuntuPIT to Linux Journal and to Various Fake Sites Still Promoted by Google News
It's so worrying to see what the Web has become
Links 29/10/2025: CISA, Ukraine, and Amazon Problems
Links for the day
[Teaser] The EPO's Spokesperson, a Cocaine User, Fancies Young Women
How's that for "optics" in the EU and Europe's second-largest institution?
How Will António Campinos Respond to the EPO's 'Cocainegate'?
That's the same thing we saw and still see when the press deals with enablers and partners of Jeffrey Epstein
Join Us Now and Share the News - Part IV: There Cannot be Free Software Without Free Press and Free Information
One day, one can hope, more people will recognise that for Software Freedom we need free press and free thinkers
Join Us Now and Share the News - Part III: Principled Stance Is Never Cheap
Protecting the truth and insisting that the general public is made aware of things that really happened isn't cheap
Join Us Now and Share the News - Part II: Because Scarcity of Accurate Information Breeds Collective Ignorance
we too will strive to share information that's aggressively suppressed
Gemini Links 28/10/2025: More New Arrivals at Geminispace, xkcd on "Document Forgery"
Links for the day
Join Us Now and Share the News - Part I: Defence of the Truth
This year we make a very strong, firm statement for truth, even if that means explaining our work to the top media judge in the country
Links 28/10/2025: Meta and Fentanylware (CheeTok) Age-Restricted Down Under, "Britain Needs China’s Money"
Links for the day
Links 28/10/2025: Mass Layoffs at Amazon and Charter to Cut 1,200 Jobs
Links for the day
The Cocaine Patent Office - Part II: The Person Who Planted Paid-for Fake News for the European Patent Office (EPO) is a Cocaine User, Friend of António Campinos, Now on Record as Having Been Arrested
Background: High-level manager at the European Patent Office caught in public with cocaine, arrested
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, October 27, 2025
IRC logs for Monday, October 27, 2025
Google News Drowning in Slop (and Slopfarms That Hijack About Half the Results)
Google News seems to be drowning in this stuff
Gemini Links 28/10/2025: "How to Maximize Your Positive Impact" and ASCII Art and Artist Attribution
Links for the day
PETA and Activism
Being staff or volunteer in PETA isn't easy
Big Blue, Huge Debt
debt will soar again
Links 27/10/2025: Mass Surveillance Sold as "AI", People Reluctant to Lose Physical Media
Links for the day
Parties and Milestones Again
we've begun putting up about 40 balloons
Techrights' 19th Anniversary: Bronze
Time to go back to preparing for this anniversary
Our Latest European Patent Office (EPO) Series Will Last Several Weeks, Will Ask the EPO Management and the European Union (EU) Very Difficult Questions
If nobody loses a job (or jobs) over this, then the EU basically became no better than Colombia or Nicaragua
Slopwatch: LinuxSecurity, UbuntuPIT, Brian Fagioli, and Google News
We focus on stories that are fake or LLM slop that disguises itself as "news" about Linux
Links 27/10/2025: Wikipedia Vandalism, Bruce Perens Opens up on Childhood
Links for the day
This Site Could Not be Done by LLMs Even If It Wanted to (Because It's Not a Parrot of What Other Sites Say)
LLMs have no knowledge or deep understanding
Microsoft is Disloyal Towards Its Most Loyal Employees
Against its most faithful enablers
19 Years, No Censorship
No factual information is ever going to be removed, more so if it is in the public interest
We Are Not a Conventional Site, That's Why They Hate (or Love) Us
Throughout the week this week we'll be focusing on the EPO
Following the Line of Cocaine All the Way to the Top
Even a million denials and spin-doctoring won't distract from the core issue
The Cocaine Patent Office - Part I: António Campinos Brought Corruption and Nepotism to the EPO, Then Came the Cocaine
High-level manager at the European Patent Office (EPO) caught in public with cocaine, the Office has some answering to do
Purchasing/Possessing Computers Isn't the Same as Controlling Computers
Let's strive to put computers back under the control of their users, no matter who purchased these (usually the users)
Gemini Links 27/10/2025: Alhena 5.4.3 and Fixing Bash
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, October 26, 2025
IRC logs for Sunday, October 26, 2025
Thankfully We've Made Copies of More Interesting Data From statCounter
If statCounter (the Web site or the 'webapp') vanished overnight, we'd still have something left of it
More Silent Layoffs at IBM/Red Hat
when the media counts such layoffs or presents tallies the numbers are very incomplete