Bonum Certa Men Certa

The EPO's War on Justice and Assault on the Law -- Part 1: Rumours of a Kangaroo Court at EPOnia

Carl Josefsson's kangaroo court
Is Carl Josefsson presiding over a kangaroo court?



Summary: EPO's President Benoît Battistelli viciously attacked judges and slandered judges; António Campinos adopts a more 'soft power' approach, but nevertheless the impact is the same

Almost two years have passed since Techrights published the mini-series "EPO Looney Tunes" which explored the "difficult legacy" of Battistelli's Boards of Appeal "reform", in particular the banishment of the Boards to Haar.



That mini-series reported on the referral case G 2/19 in which the Enlarged Board had to deal with the question as to whether or not oral proceedings could lawfully be held in the municipality of Haar adjoining Munich.

As predicted, the Enlarged Board ended up confirming that the holding of oral proceedings in Haar was in compliance with the EPC, thereby effectively rubber-stamping the exile of the Boards from Munich in accordance with controversial scheme conjured up by Battistelli in 2016.

Since then the Enlarged Board under Josefsson's management has cemented its reputation for "legal fudge" and "cakeism", most notably following its decision in case no. G 3/19 in May of last year.

On the surface, case no. G 3/19 was about the rules governing biotech patenting but the decision of the EBA has far more general and wide-reaching legal and political implications which extend beyond any specific field of patenting.

"Hence, the decision of the Enlarged Board in case no. G 3/19 implies that the mechanism for amending the Implementing Rules can now be (mis)used by the Council as a convenient - but legally questionable – means for avoiding the bother of convening a diplomatic conference to revise the Articles of the EPC."According to informed commentators, the doctrine of "dynamic interpretation" on which G€ 3/19 relied, basically opens the door to the EPO's Administrative Council to change the EPC by amending the Implementing Rules.

It should be recalled that - in contrast to the Articles of the EPC which can only be changed by a diplomatic conference and the unanimous consent of all contracting states - the Implementing Rules can be changed at the drop of a hat by a simple majority of the Administrative Council.

Hence, the decision of the Enlarged Board in case no. G 3/19 implies that the mechanism for amending the Implementing Rules can now be (mis)used by the Council as a convenient - but legally questionable – means for avoiding the bother of convening a diplomatic conference to revise the Articles of the EPC.

This is because the Enlarged Board has effectively taken the position that the primary law of the EPC can be "dynamically re-interpreted" in the light of amendments to the subordinate Implementing Rules.

"Even IP Kat - which had been more or less neutered by Battistelli from about 2016 onwards - showed visible signs of discomfort at this development..."Such a position is completely at odds with the generally recognised principle of the hierarchy of legal norms - but this is EPOnia we are dealing with here, the realm of "legal anarchy".

Even IP Kat - which had been more or less neutered by Battistelli from about 2016 onwards - showed visible signs of discomfort at this development and warned that "the fudging by the EBA to reach its decision in G3/19 will raise questions as to its functioning as an independent body, free from the political influence of the President and AC."

The Enlarged Board has been back in the news again recently and once again questions are being raised about its compliance with fundamental legal principles such as judicial independence.

"As the date for the hearing approaches it seems like a good time to take a fresh look at the EPO's Enlarged Board of Appeal to get a better idea about what is really going on behind the scenes in this landmark case."This time the case number is G 1/21 (warning: epo.org link) and the IP blogosphere is buzzing with rumours of a "kangaroo court" procedure.

An oral hearing is due to take place on 28 May. [PDF]

As the date for the hearing approaches it seems like a good time to take a fresh look at the EPO's Enlarged Board of Appeal to get a better idea about what is really going on behind the scenes in this landmark case.

Stay tuned for more…

EPO Summons to ViCo

Recent Techrights' Posts

EPO Staff Explains Why It Cannot Issue EPC-Compliant European Patents (in Other Words, Why Many Fake Patents Get Issued)
chaos inside
 
Chris Rutter, Winchester College, Clare College choir, Arm Ltd, underage workers & Debian accidental deaths
Reprinted with permission from Daniel Pocock
Gemini Links 25/02/2024: Blocking Crawlers and Moving to gemserv
Links for the day
IRC Proceedings: Saturday, February 24, 2024
IRC logs for Saturday, February 24, 2024
Over at Tux Machines...
GNU/Linux news for the past day
[Meme] Objective Objection at the EPO
No more quality control
Links 24/02/2024: More Sanctions Against BRICS, Software Patents Squashed
Links for the day
Microsoft's Demise on the Server Side Continues Unabated This Month
Netcraft says so
Bonnie B. Dalzell Explains Her Experience With Richard Stallman
new essay
Gemini Links 24/02/2024: OpenBSD Advocacy and Nonfree Firmware Debated
Links for the day
Mark Shuttleworth & Debian Day Volunteer Suicide cover-up
Reprinted with permission from Daniel Pocock
IRC Proceedings: Friday, February 23, 2024
IRC logs for Friday, February 23, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Links 24/02/2024: EA Planning Layoffs and 'Liquor Regulators Are Seeking Revenge on Bars That Broke Pandemic Rules'
Links for the day
Gemini Links 24/02/2024: In Defense of Boilerplate and TinyWM Broke
Links for the day
Microsoft's Pearls of Wisdom: Layoffs Are Growth
Microsoft boss: layoffs are "long-term growth."
[Meme] Hide the Bodies
hiding EPO's role in funding Lukashenko
Josef Kratochvíl and All the European Patent Organisation's Chiefs (at the Administrative Council Too) Notified That Over 1,000 Members of Staff Demand Action on Patent Quality and Compliance (Industry Too is Alarmed That Many Invalid Patents Get Granted)
Huge corruption
Microsoft Lacks a Solid Strategic Plan Other Than Buying Its Own Stock (and Paying Staff in Shares)
Beware and be cautious of bubbles
Debian trademark canceled
Debian trademark canceled
Links 23/02/2024: Feed Aggregator and 2 Years of Invasion, Alexei Navalny’s Mother Blackmailed
Links for the day
Gemini Links 23/02/2024: Getting 'Sick' of Modern Tech and Deletion of One's Reddit Account
Links for the day
Links 23/02/2024: 227 Microsoft Layoffs Noted in Santa Clara and Disaster in Rivian
Links for the day
IRC Proceedings: Thursday, February 22, 2024
IRC logs for Thursday, February 22, 2024
Over at Tux Machines...
GNU/Linux news for the past day