Bonum Certa Men Certa

Virtual Injustice -- Part 12: Carl Josefsson – Down But Not Out!

Previously in the series:

  1. Virtual Injustice -- Part 1: António's Increasingly Wonky Legal Fudge Factory
  2. Virtual Injustice -- Part 2: The ViCo Oral Proceedings of 28 May 2021
  3. Virtual Injustice -- Part 3: All the President's Men…
  4. Virtual Injustice -- Part 4: Mihály Ficsor, the EPO's Hungarian “Fixer”
  5. Virtual Injustice -- Part 5: Benoît's “Friends” in Budapest
  6. Virtual Injustice -- Part 6: Best Buddies With António
  7. Virtual Injustice -- Part 7: Musical Chairs and Revolving Doors
  8. Virtual Injustice -- Part 8: A Well-Connected 'IP' Maximalist
  9. Virtual Injustice -- Part 9: Heli, the EPO's Nordic Ice-Queen
  10. Virtual Injustice -- Part 10: Vapid and Superficial Coverage in the 'IP' Blogosphere
  11. Virtual Injustice -- Part 11: Perceptive Comments and Caustic Criticism


Josefsson and Boards of Appeal
Something seems to be out of balance at the Boards of Appeal. Now what could that be?



Summary: António Campinos still controls Josefsson, who controls all the judges, so in effect all the legal cases (including some about European software patents) are manipulated by the Office the judges are supposed to judge

One of the main protagonists in the legal shenanigans which have bedevilled case no. G 1/21 is the President of the Boards of Appeal, Carl "Calle" Josefsson, who appears to have become a casualty of his own hubris.



Josefsson's role in the case was characterised by the arrogance and "hauteur" typical of the EPOnian senior managerial caste.

"His conduct was so outrageously out of order that it attracted a significant amount of public criticism."He insisted on taking charge of the proceedings and chairing the panel despite his obvious conflict of interest in the matter.

His conduct was so outrageously out of order that it attracted a significant amount of public criticism.

Partiality objections against Josefsson and other members of the originally appointed panel were raised in numerous "third party observations" [PDF] submitted to the Enlarged Board and in written submissions filed by the appellant on 27 April 2021. [PDF]

On 17 May, the Enlarged Board held an intermediate or "interlocutory" session to consider the objections which had been raised by the appellant.

The outcome of this interlocutory session was that Josefsson was deposed as chairman of the panel. One other member of the panel - Ingo Beckedorf – was also obliged to step down after he had admitted to the Enlarged Board that he had been personally involved in the drafting of the disputed provision concerning mandatory ViCo hearings.

At this point, one might be tempted to conclude that order had been restored and that there was nothing to worry about now.

"In reality, the removal of Josefsson from the proceedings has not solved the manifold problems which have dogged this procedure from the outset."After all, Josefsson had been replaced as chairman of the panel. Didn't this mean that he was safely sidelined from exerting any further influence over the proceedings? Where's the problem?

It's understandable that an uninformed observer might be tempted to draw such conclusions. However a closer study of the facts suggests that such optimism would be seriously misplaced.

In reality, the removal of Josefsson from the proceedings has not solved the manifold problems which have dogged this procedure from the outset.

By 17 May it was plain to all and sundry - including the other members of the Enlarged Board - that Josefsson's replacement had become necessary to avoid a complete meltdown of public confidence in the Boards of Appeal and the EPO in general.

However, on its own this corrective measure cannot be considered sufficient to remedy the further flaws in the procedure or to restore public confidence in the manner in which the Enlarged Board is dealing with the case.

To begin with, it seems that the Enlarged Board's interlocutory session of 17 May took place in the absence of the parties.

As noted by the pseudonymous poster "The fall of the EBA" in a comment on IPKat, the exclusion of the parties from this session seems to be a serious procedural violation:

Partiality might be discussed in a non-open OP before the EBA, but the first decision in which the chair of the BA [Josefsson] and his faithful servant [Beckedorf] were removed by their peers, was taken without the parties. This is a scandal on its own as even the discussion on partiality should be of contradictory [i.e. adversarial] nature.


The poster went on to criticise the refusal of the Enlarged Board to grant the appellant's request for the disclosure of the statements which Ritzka and Eliasson had made in response to the objections against them, describing this as "a further scandal":

The parties have the right to know why the members accused of partiality consider themselves this is not the case.


During the oral proceedings on 28 May, the Enlarged Board dismissed a further objection that the replacement members - namely, the new chairman Blumer (replacing Josefsson), and the new legal member Bokor (replacing Beckedorf) - had not been appointed in accordance with the applicable procedural rules for replacement.

On the basis of the currently available information, it would appear that the Enlarged Board simply chose not to admit these objections on some legal technicality so that it could avoid having to enter into an examination on the substance of the objections.

All in all, there is a perception among external observers that a question mark – or rather a series of question marks – remain hanging over the legality of the panel in its current composition.

Ritzka, Eliasson and van der Eijk
There seems to be a general consensus that partiality objections relating to Ritzka, Eliasson and van der Eijk have not been dealt with in a satisfactory manner.



In particular, there seems to be a general consensus that the partiality objections relating to certain members of the original panel - namely, Ritzka, Eliasson and van der EIjk - have not been dealt with in a satisfactory manner.

Blumer-and-Bokor
Were the replacement members, Blumer and Bokor appointed in accordance with the applicable procedural rules?



In addition to this, there are unresolved doubts about the legitimacy of the selection of Blumer and Bokor as the respective replacements for Josefsson and Beckedorf.

Aside from these well-founded concerns about the composition of the panel, observers have also pointed to another serious blunder committed by the Enlarged Board on 17 May when - claiming to be acting in the interests of "timeliness" - it stubbornly refused to contemplate any change to the original precipitous schedule which Josefsson had imposed on the proceedings in an attempt to rubber-stamp his own decision as quickly as possible.

"Had the Enlarged Board rescheduled the proceedings – as it should have done – that would not only have given the newly composed panel sufficient time to take proper stock of the case and have provided the appellant with an adequate opportunity to exercise its right to be heard."If the Enlarged Board had been acting in a truly independent manner free from subtle and hidden political pressures, it is clear that the only sensible course of action, following the interlocutory decision of 17 May and the sidelining of Josefsson, would have been to cancel the oral proceedings of 28 May and to re-appoint new oral proceedings at a later date.

Had the Enlarged Board rescheduled the proceedings – as it should have done – that would not only have given the newly composed panel sufficient time to take proper stock of the case and have provided the appellant with an adequate opportunity to exercise its right to be heard.

It would also have sent a clear signal that the newly composed panel wished to distance itself from Josefsson's scandalous conduct during the initial phase of the procedure and his cynically manipulative prioritisation of "speed" over "diligence".

It deserves to be pointed out that Josefsson had openly and brazenly acted in a manner which was in direct contradiction to a fundamental tenet of judicial conduct, "Nemo judex in causa sua".

This tenet is expressed in the following terms under item 9.2 of the Burgh House Principles:

"Judges shall not serve in a case with the subject-matter of which they have had any other form of association that may affect or may reasonably appear to affect their independence or impartiality".


On IPKat the pseudonymous "Proof of the pudding" commented as follows:

We can conclude that the President of the BoA must have overlooked this principle when (originally) deciding to serve in case G 1/21.

Frankly, it is hard to see how even the appearance of impartiality can now be restored in view of the fact that the EBA has not (completely) rescinded the decisions taken by the President of the BoA in G 1/21.


The failure of the Enlarged Board to draw a line in the sand and to distance itself in a clear and unambiguous manner from Josefsson's previous judicial misconduct means that, no matter what happens after his removal, the procedure remains tainted by his initial influence on it.

It also gives rise to a suspicion that Josefsson's removal from the procedure may have been agreed upon solely for the sake of "optics".

In other words, it is quite possible that his removal was nothing more than a tactical manoeuvre designed to mislead the public into believing that the Enlarged Board was prepared to deal with the case in a genuinely impartial and diligent manner.

Last but not least, there is the "elephant in the room" alluded to by a number of commentators on the IPKat blog, namely the gaping governance deficits arising from Benoît Battistelli's Boards of Appeal "reform" of 2016.

The events surrounding G 1/21 have exposed the deficiencies in this "reform" in practice and make it clear that the "reform" has diminished rather than enhanced the independence of the Boards.

As the poster "The fall of the EBA" put it in one of his comments on IPKat:

The whole way G 1/21 has been managed by the chair of the EBA shows amply that the BA [Board of Appeal] are anything but independent.

On top of it, the chair of the BA [Josefsson] only has the powers delegated to him by the president of the EPO.

There is not even the perception of the independence!


The essential point to be noted here is that, although Josefsson has been formally removed from the panel dealing with G 1/21, the Chief Oompa Loompa of the EPO's legal fudge factory still rules the roost in Haar by virtue of Rule 12d(3) EPC. (warning: epo.org link)

Chief-Oompa-Loompa-Josefsson
Chief Oompa Loompa Josefsson still rules the roost in Haar thanks to Rule 12d(3) EPC.



As explained in the postscriptum to the last series, Rule 12d(3) EPC - which is a key component of Battistelli’s 2016 “reform” - makes all internal members of the Enlarged Board dependent upon Josefsson’s goodwill for the purpose of obtaining a positive “opinion” on their reappointment.

"The events surrounding G 1/21 have exposed the deficiencies in this "reform" in practice and make it clear that the "reform" has diminished rather than enhanced the independence of the Boards."In other words, although Josefsson can no longer influence the outcome of the procedure directly, he still has considerable means at his disposal to influence it indirectly.

In the next part of the series we will summarise the current state of the procedure following the hearing of 28 May and speculate about what might - or might not - happen when the procedure resumes in July.

Recent Techrights' Posts

Brett Wilson LLP Sent Over 5 Kilograms (or Over 12 Pounds) of Legal Papers! Because Writing About Microsoft Abuses is 'Illegal'.
How do you guys sleep at night? On a big pile of Microsoft money?
Extremism as a Weapon Against GNU/Linux (Microsoft Lunduke)
He ought to know the Halloween Documents. Wasn't he a Microsoft employee when these came out?
 
Microsoft-Sponsored Propaganda Site Has Removed False 'Hit Piece' About Dr. Stallman (With Fake and Misrepresented Imagery) But Only After 4 Years
So they only removed that page some time around 2025, i.e. about 4 years after it had been published
Always Check Your Inputs
Garbage in, garbage out. Or wrong assumptions, wrong corollary.
Dan Neidle Said That Tax Evasion Facilitator Mr Zahawi (Working to Silence Bloggers Through Brett Wilson LLP) Targeted Not Only Him (But The Others Kept Quiet)
"Mr Neidle said after repelling Mr Zahawi he was contacted by bloggers and tweeters who had received similar threats. They deleted their work “and in most cases never commented publicly on anything again”."
SLAPP Funding Transparency Urgently Needed in the UK and Elsewhere (in Practice, Not Just in Theory)
Writing about crime - including Microsoft crime - is not a crime
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, July 09, 2025
IRC logs for Wednesday, July 09, 2025
Elodie Bergot Still Doing Illegal Things at the EPO, Based on the Local Staff Committee Munich
They keep taking away from the staff while compelling the staff to do illegal things
Gemini Links 09/07/2025: Extreme Testing and Golang Documentation in Geminispace
Links for the day
Vice President of the European Patent Office (EPO) Complains That Techrights Gives Visibility to Legal and Technical Issues at the EPO
"Follow-up on enquiries relating to Dir. 1218 and 1001"
Slopwatch: linuxsecurity.com and Various Slopfarms That Lie About "Linux" and Are Promoted by Google News
Google does not seem interested in tackling this problem
Links 09/07/2025: War Updates and Microsoft Moving to India to Cut Costs
Links for the day
GNU/Linux Was Always a 'Movement' of Inclusion of Tolerance
Even the licences themselves remove access barriers
Links 09/07/2025: "Subprime AI Crisis" and "OpenAI May Be in Major Trouble Financially"
Links for the day
Huge Piles of Legal Papers ('Paper DDoS') Do Not Impress Judges and Regulators
they just make judges and regulators even more suspicious of the eagerness to resort to 'paper DDoS'
Lunduke Isn't Even Hiding His Anti-Linux Agenda (From "Linux Sucks" to "Linux is Pedophiles")
just trying to make a lot of trouble
Some People Use Computers to Get Actual Work Done
Tolerance and inclusion must extend to acceptance that some people don't agree with you, might never agree with you, and imposing what allegedly works for you on them is unreasonable
Example of "Old" Things That Still Work
The notion that something being "old" implies it must be discarded is typically advanced by those looking to sell more of something
Some Scheduled Maintenance Later Today
Typically the most vulnerable service during short interruptions is IRC
Computers Are Just a Tool
People don't get married because they love weddings, folks don't join the army because they love war, and most drivers don't drive to work because they love cars
Apple Way Past Its Prime
Apple deserves a decline
The FSF's SysOps Team Recovered From Serious Hardware Issue Within Hours
About half a day ago I noticed that all/most GNU/FSF sites were not reachable and thus reached out to a contact for any details
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, July 08, 2025
IRC logs for Tuesday, July 08, 2025
Slopwatch: Turning Bugs Into FUD About "Linux", Getting Basic Facts Wrong
all the screenshots are of fake articles; we don't want to link to any
Technical Reasons, Not Politics: With Wayland "it feels a lot like Linux from 20-25 years ago, which is horrendously frustrating, because it feels like we wasted one or two decades of progress and stability"
Lately, quite a few benchmarks were published to show Wayland compares poorly compared to what we had
PCLinuxOS Recovering From Fire
It looks like a nightmare scenario, where even backups onsite get destroyed
Links 09/07/2025: More Heatwaves, Officials Culled in Russia
Links for the day
Gemini Links 09/07/2025: XScreensaver and Resurrection
Links for the day
Links 08/07/2025: "Cyberattack Deals Blow to Russian Firmware" and "Cash Remains King"
Links for the day
FSF40 T-shirt message
by Alex Oliva
Gemini Links 08/07/2025: Creativity, Gotify with NUT Server, and Sudo Bugs
Links for the day
More on "Lunduke is Actually Sending His Audience to Attack People"
"pepe the frogs"
Links 08/07/2025: Sabotage of Networking Infrastructure, Microsoft XBox Game Pass Deemed “Unsustainable”
Links for the day
Dalai Lama Succession as Evidence That Determined, Motivated People Can Reach Their Nineties
And we need to quit talking about their death all the time
Many Lawyers (for Microsoft) and 1,316 Pages to Pick on a Litigant in Person Who Exposed Serious Microsoft Abuses
Answers must be given
Gemini Links 08/07/2025: Ancillary Justice and Small Web July
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, July 07, 2025
IRC logs for Monday, July 07, 2025