Bonum Certa Men Certa

Virtual Injustice -- Part 11: Perceptive Comments and Caustic Criticism

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


Thrown objects
Many of the comments on the actions of the EBA have been quite critical.



Summary: The EPO's management managed to silence a lot of the critical media (handouts and threats from Benoît Battistelli and António Campinos), but silencing comments is a lot harder; though we don't know which ones were moderated out of existence...

In the last part we looked at the coverage of G 1/21 in the 'IP' blogosphere and noted the failure of most reports to get to grips with the important issues at stake in the present case.



As often happens, the real "meat" is to be found in the comments which appear underneath the blog posts themselves.

"As often happens, the real "meat" is to be found in the comments which appear underneath the blog posts themselves."Some of the comments posted beneath the IPKat report are very perceptive and informative and deserve closer attention.

The first person to comment referred to the dismissal of the appellant's "compelling" submissions which alleged "continued lack of impartiality of the amended panel".

The poster concluded that "today marks a sad loss of the days when impartiality could be expected" from the EPO's Enlarged Board of Appeal.

The next person to comment added that "it also marks the end of the days where rules had to be obeyed (at least for the EBoA)" and continued as follows:

The EBoA discussed and refused request 1 (postponement of the Oral Proceedings) in non-public consultations only with the Appellant when there was no justification to exclude the public on this point, and granted request 2 (Oral Proceedings to discuss Art. 24 EPC) without obeying Rule 115 EPC.

And what about the approach that serving documents to parties and clause 2 of Art. 9 RPEBOA are not so important? Only in the last moment the EBoA "gracefully" granted (less than) one month for the Appellant to submit his observations. Surely, Art. 10 RPEBOA provides that third parties' observations (and amicus curiae submissions) "may be dealt with as the Board thinks fit".

This Board obviously thinks it fit to put them on an USB stick and then directly throw them in the bin. Which patent attorney right in his mind would put in his or her computer an USB stick that had been sent to him by mail? I hope none.


The comments in a response from another poster under the pseudonym "The fall of the EBA" were even more caustic and began by referring to the infamous removal from office proceedings G€ 2301/15 (warning: epo.org link) conducted back in September 2015:

Talking about an USB stick: when the EBA was called in to confirm the sacking of one of its members, the then president gave the EBA a stick with all alleged proof of the misbehaving of the accused member and told the EBA it should take knowledge of its content. At the time the EBA refused to look at it.

Now it is the BA which gives an USB stick to a party and tells it to take knowledge of its content. It is amazing to see how the EBA has evolved! Do not tell me that the EBA is really independent.


The poster continued with the following criticism of oral proceedings by ViCo and suggested that the proceedings in G 1/21 were being conducted in a manner designed to facilitate Campinos' plans for the "New Normal" at the EPO:

OP by video before the EBA do not give the guarantee that the representatives of the president cannot participate in the debate within the EBA. It might be far-fetched, but in view of the manner G 1/21 has been dealt with by the EBA up to now, I would not be surprised.

It is clear that the speed with which the chair of the BA called OP was to please the president. Without OP by ViCo no “New Normal”!


In conclusion, there were some harsh words about the Enlarged Board and the President of the Boards of Appeal, Carl Josefsson:

That on top [of the fact that] the EBA is not even aware of its own RP is as such a scandal.

That the chair of the BA had to be told by his peers that he should not act in G 1/21 also a scandal. I do not think that his credibility has increased.


Some posters were particularly critical of the precipitous haste with which the procedure was conducted in the run-up to the hearing of 28 May:

Especially given the fundamental nature of the decision here, there should absolutely be sufficient time for all parties to prepare the case. This was true even before the two most crucial members of the EBoA have been exchanged mere days before the Oral Proceedings, and it is certainly true now. Compare this to a "normal" EBoA case in which the EPO has no "causa sua" interest and check how much time there usually is to prepare legal opinions and so on.


Much of the discussion focused on the lack of independence of the Boards of Appeal and the evident failure of Battistelli's "reform" in 2016 to solve this problem.

A poster under the pseudonym "Bring About" made the following observations:

The letter of the opponent detailing its objections on suspected partiality is very interesting, cf.

https://register.epo.org/application?number=EP04758381&lng=en&tab=doclist (Letter of 24.05.2021)

For me the opponent convincingly shows that a decision untainted by suspicions of partiality is impossible for this case.

The reasons are multiple, but I would say that the fundamental one is the lack of independence of the (E)BoA.


The poster's comments on Battistelli's 2016 "reform" were as follows:

The situation has been clearly rendered worse by the actions of the current President of the Boards, a position created with the latest reform.

Thus it seems that this reform under the pretense of increasing the (perception of) independence of the Boards has in fact aggravated the issue.


Another poster - "Proof of the pudding" – referred to Article 6 of the European Convention on Human Rights, and stated that there were "objectively justifiable doubts" regarding compliance with the criteria for judicial independence laid down in the jurisprudence of the European Court of Human Rights.

The poster concluded by asking the question: How has this been allowed to happen?

In a later comment, the same poster referred to the Burgh House Principles On The Independence Of The International Judiciary and the requirement that a judge refrain from adjudicating on cases where he could be reasonably suspected of having an interest in the outcome. The poster concluded that "the President of the BoA must have overlooked this principle when (originally) deciding to serve in case G 1/21".

Criticism of Carl Josefsson and the role which he had played in the procedure also came from "The fall of the EBA":

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


In a subsequent post "The fall of the EBA" took the view that the procedural "mess" in G 1/21 was a consequence of Battistelli's Boards of Appeal "reform":

The whole mess the BA/EBA finds itself in, is the direct result of the reform of the BA wanted by a former head of the EPO.

It is a scandal that members of the BA can only be reappointed if they have shown a given "performance". The criteria are still non-public. This is also scandalous!

Without leaning too far out of the window, performance means probably a certain flexibility of the spine associated with a production increasing every year like in DG1.

The EPO has indeed been degraded to a producer of "targets".

When one sees the number of patents revoked or severely limited in opposition because the grant procedure is flawed, it becomes alarming. Just look at the published decisions and draw your conclusions. As only 5% of patents are opposed, when you extrapolate to all the grants it is daunting!


The damning verdict from this poster was as follows:

The EBA is tumbling from one scandal to the next.

One wonder who will be the beneficiary of the deed!

I would say for some at the EPO the rules of law deserve a “dynamic interpretation”, and if they are not to their liking, they are simply ignored.

The tragic fact is that people in charge of paying due respect to the EPC are actually acting against it.


Overall, there appeared to be a general consensus amongst the posters that the manner in which the case had been handled reflected poorly on the Enlarged Board of Appeal and gave serious cause for concern about the state of judicial independence at the EPO.

"Overall, there appeared to be a general consensus amongst the posters that the manner in which the case had been handled reflected poorly on the Enlarged Board of Appeal and gave serious cause for concern about the state of judicial independence at the EPO."As we have seen, a number of the comments were highly critical of the President of the Boards of Appeal, Carl Josefsson, who was deposed as chairman of the panel on 17 May.

However, as previously explained, despite the fact that Josefsson has been sidelined, he still remains in a position to exert an indirect influence on the proceedings.

In the next part we plan to take a closer look at this particular "elephant in the room".

ViCo offline
President of FFII, who 'attended' the hearing, was more than impressed by the unprecedented transparency



Recent Techrights' Posts

IBM is Rotting With "Zero Internal Jobs" and Many PIPs (Performance Improvement Plans) on the Way, Typically a Fast Track Towards Layoffs Without Severance
At risk of giving air(time) to tribal sentiments, the internal joke at IBM is that to IBM "AI" stands for "All Indian"
The Gerstnerisation of Microsoft: Seventh Wave of Microsoft Layoffs (Over 20,000 to be Cut) Allegedly Going to Start Shortly, Probably Start of Next Week, Microsoft Spreads Chaff and Noise Before the Big Axes Fall
we might be looking at about 50,000 people that Microsoft gets rid of this year
GNU (and the FSF) Still Changing the World
Today, in 2025, GNU powers almost everything
Military-Grade Anti-Linux Microsoft Propaganda Using Microsoft LLMs in Fake 'News' Sites (Slopfarms)
This is part of a pattern
 
Rust Propaganda Now Amplified by Slopfarms Powered by Microsoft LLMs, Encouraging the Outsourcing of GNU/Linux Distros to Microsoft/GitHub/NSA (and a Shift Away From GPL/Copyleft)
Moving to Microsoft GitHub and adopting unfinished, untested code for highly critical bits
Links 09/05/2025: Inflation Rising and Rights to Protest Curtailed Some More
Links for the day
Gemini Links 09/05/2025: Good and Evil, LLMs Made the Web Worse Yet Again
Links for the day
European Patent Office (EPO) Faked "Revenue Expansion" by Granting Loads of Invalid, Illegal Patents; Staff Still Wants to Know Where That Money Went
Only about 30% of the EPO's patents are for EU entities/people
Links 09/05/2025: TeleMessage Blunder, More Distractions From Impending Mass Layoffs at Microsoft
Links for the day
Links 09/05/2025: Analog Computer and First time at FOSDEM
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, May 08, 2025
IRC logs for Thursday, May 08, 2025
Links 08/05/2025: Mass Layoffs at Google Again, India/Pakistan Tensions Continue to Grow, New Pope (US) Selected
Links for the day
"Victory Day" - Part I: That is the Day Microsofters Who Assault Women Pay for Their Actions in Foreign Land (Using "Guns for Hire" Who Attack Their Own Country for American Dollars)
Adding a friend from Microsoft to the docket didn't help
Rust is Starting to Seem More Like Microsoft-hosted "Digital Maoism", Not a Legitimate Effort to Improve Security
Maybe this is very innocent, but they seem to have taken a solid, stable program from a high-profile Frenchman and looked for ways to marry it with GitHub, i.e. Microsoft/NSA
Gemini Links 08/05/2025: Practical Gemini Use Case, Shutdown of the Blanket Fort Webring
Links for the day
Links 08/05/2025: "Slop Presidency", US Government Defunds Public Broadcasting
Links for the day
Lasse Fister, Organiser of Libre Graphics Meeting, Points Out the Code of Conduct is Likely Violated by the Same People Who Promote Codes of Conduct (and Then Bully Him Into Cancelling a Keynote)
I am starting to see Lasse Fister as another victim
LLM Slop Attacks Not Only Sites of Free Software Projects But Also Bug Reporting Systems (Time-wasting, in Effect "DDoS")
Microsoft, the leading purveyor and promoter of slop, is a cancer
The Richard Stallman (RMS) "European Tour" Carries on In Spite of the Nuremberg Incident
Some people spoke about how they saw yesterday's talk
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, May 07, 2025
IRC logs for Wednesday, May 07, 2025
The CoC Means the Founder of GNU/Linux Cannot Talk and a 72-Year-Old Man With Cancer is Somehow a "Safety" Risk?
Those who don't like RMS are not forced to attend his talks
Gemini Links 07/05/2025: A Shopping Spree and Digital Gardening
Links for the day
Links 07/05/2025: Pegasus Guilty and a Path Towards EU Without Russian Energy
Links for the day
People Used to Talk
If pets can live a measurably happy life without gadgets and "apps", why can't humans?
Outsourcing GNU/Linux to Microsoft GitHub Promoted by Microsoft LLM Slop and Army Officers
Something doesn't seem right
Weaponisation of For-Profit Dockets - Part III: No More Media Lawsuits From Brett Wilson LLP This Year, One Can Only Guess Why
People leak a lot of material to Techrights because they know, based on the track record, that the sources will be protected and whatever gets published will stay online, in full, no matter how stubborn an effort (even lawsuits and blackmail) will be sent its way
Gemini Links 07/05/2025: Adopting GrapheneOS, Further Enshittification of Flickr
Links for the day
Links 07/05/2025: CISA Gutted, Debt-Saddled (Likely Insolvent) 'Open' 'AI' (Proprietary Slop) Faking Its Financial State Again
Links for the day
Finland, Lithuania, and Latvia Fortify Their Digital Border With GNU/Linux
This month's data from statCounter is particularly interesting near the Baltic Sea
The European Patent Office (EPO) Has a Very Profound Corruption Issue, Far More Urgent an Issue Than Pronouns
a rather long document
Richard Stallman Gives Public Talk at Technical University of Liberec, Czech Republic
"For programs that you could run, and for network services that could do your own computing, under what circumstances is it reasonable to trust them?"
Today We Turn 18.5
The eighteenth "and a half" anniversary
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, May 06, 2025
IRC logs for Tuesday, May 06, 2025