Bonum Certa Men Certa

The EPO's War on Justice and Assault on the Law -- Part 19: Ladies and Gentlemen, Place Your Bets…

Previously in this series:



Games begin
What happens next is anybody's guess, but don't hold your breath…



Summary: The EPO's BoA decision on G 1/21 seems to have already been made by virtue of stacking; but it's not entirely impossible that following the removal of Beckedorf and Josefsson (it happened after writing this series) something surprising will happen

At the time of writing, there has been no identifiable public reaction from the Enlarged Board of Appeal, except this, to the myriad allegations of partiality which have been articulated in the IP blogosphere in connection with case no. G 1/21.



Even the normally sanguine Thorsten Bausch, writing in the Kluwer Patent Blog, has been unable to hide his exasperation at Josefsson's apparent contempt for a fundamental and time-honoured principle of natural justice - nemo iudex in causa sua - according to which no person should be entrusted with the task of judging a case in which they have an interest.

"Taking a pragmatic view, the only realistic strategy open to the Enlarged Board at this juncture seems to be the option that the Germans call "Flucht nach vorn" - a headlong rush forwards into the legal minefield in the hope of coming out on the other side in one piece."Unfortunately, it seems that Josefsson is suffering from the widespread EPOnian ailment of "conflict-of-interest blindness" when it comes to this rather delicate issue.

To paraphrase Oscar Wilde, having a Chairman who is under suspicion of partiality might be regarded as a misfortune; to have a panel with a majority of members tainted by such suspicion looks like downright carelessness.

However, the fact of the matter is that, as the scheduled date for the hearing approaches, it becomes increasingly difficult for Josefsson and his panel to come up with a graceful exit strategy which would allow them to extricate themselves in a credible manner from the appalling legal mess of their own making.

Taking a pragmatic view, the only realistic strategy open to the Enlarged Board at this juncture seems to be the option that the Germans call "Flucht nach vorn" - a headlong rush forwards into the legal minefield in the hope of coming out on the other side in one piece.

"As things stand, it's looking pretty much like a "slam dunk" for Josefsson."Of course the Enlarged Board's predicament is significantly eased by the fact that whatever course of action it decides to take, there is no higher review instance to point an admonishing finger at its errors.

So even if the Enlarged Board decides to ride roughshod over fundamental legal principles and disregard its own internal rules for reasons of "political expediency", nobody risks getting hauled over the coals for what - under "normal" non-EPOnian circumstances - might be considered to amount to serious judicial misconduct.

As things stand, it's looking pretty much like a "slam dunk" for Josefsson.

Three of his internal members - van der Eijk, Eliasson and Ritza - are generally reputed to be managerially compliant "minions" who know their place and can be depended on to dance to the Chairman’s tune.

The only internal member with a credible track-record of independence is Beckedorf whose role in the procedures G2301/15 (warning: epo.org link, hence surveillance risk) and G2301/16 (warning: epo.org link) demonstrated that he wasn't always prepared to dance to the tune of his political masters when their wishes conflicted with his sense of professional ethics.

"Three of his internal members - van der Eijk, Eliasson and Ritza - are generally reputed to be managerially compliant "minions" who know their place and can be depended on to dance to the Chairman’s tune."But a lot of water has flowed under the Ludwigsbrücke near the EPO headquarters in Munich since those days.

It remains to be seen whether or not Beckedorf proves himself able and willing to swim against the tide in the present case.

To begin with he may have been chastened by his experiences during the proceedings in cases G2301/15 and G 2301/16 when he was reportedly faced with the threat of non‑reappointment by Benoît Battistelli's protector, Jesper Kongstad.

Beckedorf's next reappointment (to take effect as of 2022) does not appear to have been decided yet. It is probably due to be decided later this year, most likely in June. That is likely to make him wary about trying to rock the boat too much between now and then.

Apart from this, it has been rumoured that Beckedorf may harbour personal ambitions for a more senior position in the Boards of Appeal, for example as head of the Legal Board. Those are precisely the kind of considerations that tend to make a nominally independent judicial official more inclined to show deference to the whims of his political masters.

EPO and USPTO
Josefsson and Beckedorf attending a Judicial Symposium in Tokyo in 2018



Last but not least, the significance of Rule 12d(3) of the EPC (warning: epo.org link) cannot be ignored.

The consequence of this Rule - which was introduced by Battistelli's 2016 "reform" - is that Beckedorf, like all other internal members of the Enlarged Board, is dependent upon the goodwill of Josefsson to obtain a "positive opinion" on his reappointment.

"Let's not forget that Josefsson was re-appointed by the Administrative Council in December 2020 and he clearly plans to remain in charge at Haar until 2027 at least."Under the given circumstances, we can conclude that Beckedorf is likely to be extremely reluctant to dirty his copybook with his Swedish overlord.

Let's not forget that Josefsson was re-appointed by the Administrative Council (warning: epo.org link) in December 2020 and he clearly plans to remain in charge at Haar until 2027 at least.

Arnold in costume
Now that's what Battistelli would call "a real judge"!



The main potential for an upset in Josefsson's "roadmap" for the referral case no. G 1/21 would appear to lie with the external members - the "real judges" as Battistelli would have called them.

One commentator on IPKat put it like this back in March:

"It would be interesting if Mr. Arnold and/or Mr. Chatzikos were to refuse to take part in what, on the face of it, is a kangaroo court."


It would indeed be interesting if such a thing came to pass, but how likely is it?

We know next to nothing about the Greek judge, Evangelos Chatzikos, or his attitude to "kangaroo courts". Cynics will probably reply that coming from the Greek legal system he is unlikely to have much difficulty in accommodating himself to the legal "no-man's land" [PDF] of EPOnia.

"It's equally possible that Arnold might decide to take the easy option to "go with the flow" and trouser his € 1000 "petty cash" without asking too many questions."On the face of things, it is the "external member" from the UK - Lord Justice Richard Arnold - who would appear to be the person most likely to object to the procedural shenanigans which have tainted the case so far.

However, it is by no means certain that Arnold will object.

Even if he felt motivated to do so, the fact of the matter is that, as long as he remains on his own in this regard, he is in the unenviable position of being outnumbered by six to one.

It's equally possible that Arnold might decide to take the easy option to "go with the flow" and trouser his € 1000 "petty cash" without asking too many questions.

Josefsson and Arnold
Josefsson and Arnold at the 17th European Judges' Symposium (Tallinn, September 2014).



It also deserves to be noted that Josefsson and Arnold appear to be well-acquainted with each other on a professional level - as evidenced by the photographic record of the 17th European Judges' Symposium which was held in Tallinn in September 2014.

In the group photo of the event, the pair can be seen standing in close proximity to each other, with "Calle" grinning smugly like the proverbial "Cheshire cat".

"What happens next seems to be anybody's guess so - if you want to avoid a disappointment - don't hold your breath!"So it's quite possible that, for old time's sake, Arnold might prefer to avoid any kind of professional showdown with his "learned friend" Josefsson.

What happens next seems to be anybody's guess so - if you want to avoid a disappointment - don't hold your breath!

That concludes our review of the current state of play in referral case G 1/21.

A final summing-up will follow shortly.

Recent Techrights' Posts

The Week to Come
Planning ahead
LLM Slop Has Only Been a Boon for Misinformation Online
The very same companies that were supposed to maintain quality (again, not limited to Google with PageRank) are now actively participating in generating and spreading slop
When They Tell You It's Free, Does That Mean No Charges (If So, Who's Paying and Why)?
there's "no free lunch"
 
Links 28/07/2025: COVID-19 Sped up Brain Aging, "Circumvention is More Popular Than Compliance"
Links for the day
Richard Stallman is Usually Right Because He Thinks "Outside the Box"
he is able to observe society (mores and norms) as somewhat of an outsider
LWN Has Been Down for a Long Time, Another Casualty of LLM Bots?
Time will tell. How much time though?
Slopfarms Versus 'Linux' (and Against People Who Write Real Articles About GNU/Linux)
LLM slop in slopfarms by Brian Fagioli and Redazione RHC
Gemini Links 28/07/2025: Bila Yarrudhanggalangdhuray and Running pkgsrc in a FreeBSD Jail
Links for the day
Microsoft Turns News Sites Into Spamfarms
Is the site The Register MS the next IDG?
The Register MS/The Register US
On Saturday I contacted them for a comment (before issuing criticism)
Hacking revelations at Vatican Jubilee of Digital Missionaries
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, July 27, 2025
IRC logs for Sunday, July 27, 2025
We're Going to Focus Less on the Molotov Cocktail-Throwing Microsofters and More on Patents
We can get back to focusing on what we wanted to focus on all along
Just Trying to Keep Web Sites Honest (Journalistic Integrity)
the latest articles in LinuxIac are real
Links 27/07/2025: Political Affairs, Data Breaches, Attacks on Freedom of the Press
Links for the day
Gemini Links 27/07/2025: Hot in Japan and Terminal Escape Codes
Links for the day
Links 27/07/2025: More Microsoft Layoffs Coming, Science and Hardware News
Links for the day
Links 27/07/2025: FSF Hackathon and "Hulk Hogan Was a Very Bad Man"
Links for the day
Gemini Links 27/07/2025: DAW Mixer Chains and Simple Software
Links for the day
The Register MS is Inventing or Giving Air Time to New Conspiracy Theories so as to Distort the Narrative As High-Profile Agencies Fall Prey to Microsoft Holes
But the problem is holes, i.e. Microsoft making bad products; the problem is Microsoft
Most Editors at The Register Are American, Including the Editor in Chief, a Decade-Long Microsoft Stenographer (Writing Prose to Sell Microsoft)
It's not easy to tell where the site is based (we tried) because it's hiding behind ClownFlare and CrimeFlare hasn't been well lately
Pushers of systemd Rewrite History (Richard Stallman Said UNIX "Was Portable and Seemed Fairly Clean")
Unlike systemd
"New Techrights" Soon Turns 2 (A Few Days Before the FSF Turns 40)
We have a lot more to say about LLM bots
When Silence Says So Much
Garrett, a 'secure' boot pusher, will need to defend himself in the UK High Court
The Register in Trouble
There is not much that can be done at this point
Trajectory of The Register: From News Site/s Into "B2B"... and Into Microsoft Salespeople
Something isn't right at The Register
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, July 26, 2025
IRC logs for Saturday, July 26, 2025
Misinformation in Social Control Media
Social control media passes around all sorts of tropes
Slopwatch: Fake Linux 'Articles' and Slopfarms With "Linux" in Their Names/Domains
throwing bots at "Linux" to make some fake articles
Links 26/07/2025: Amazon Shutdown in China, Russian Economy Slows
Links for the day
Gemini Links 26/07/2025: History of Time (1988) and Gemini Games
Links for the day
Links 26/07/2025: 50 Percent Tariffs in Amazon, Dying Intel Offloads Network and Edge Group (NEX)
Links for the day
Doing My Share to Tackle Online Slop and SPAM
Trying my best to 'fix' the Web
Blaming Programming Languages for Users' and Developers' Bad Practices
That's like blaming cars for drivers who crash into things
Slopwatch: Fakes, FUD, Duplicates, and Charlatans Galore
The Web as we once know it is collapsing. Some opportunists try to replace it with low-quality slop.
The Register UK Seems to Have Become American and Management is Changing (Microsofter as Editor in Chief)
The Register 'UK' is now controlled by the Directions on Microsoft guy
Many People Still Read Techrights Because It Says the Truth, Produces Evidence, and Does Not Self-Censor
Unlike so many other sites
The Register is Desperate for Money, According to The Register
I decided to check how they're doing as a business
Microsoft Finally Finds a Use Case for Slop?
Create low-quality chaff to shift the media's attention?
Microsoft Windows Lost 400 Million Users in a Few Years, Why Does The Register Double Down on Windows With New US Editor?
days ago they hired a new US editor
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, July 25, 2025
IRC logs for Friday, July 25, 2025
For Libel Reform One Must First Bring (or Raise) Awareness to the Issues and Their Magnitude
I myself know, from personal experience
Links 26/07/2025: Rationed Meals in the US and TikTok Repels Investments (Too Toxic)
Links for the day
Gemini Links 26/07/2025: "Bloody Google" and New People in Geminispace
Links for the day
Response to Solderpunk (Father of Gemini Protocol) About the Gemini Community
Solderpunk responds to non-sequitur
HTML and the Web Used to be Something a Child Could Learn, "Modern" Web is a Puzzle of Frameworks, Bloat, and Worse
When the Web was more like Gemini Protocol