11.29.15

How the EPO Twisted Defamation Law in a Failed Bid to Silence Techrights

Posted in Europe, Patents at 10:28 am by Dr. Roy Schestowitz

The European Patent Office (EPO) is strong-arming bloggers

Twisted fingers

Summary: Using external legal firms (not the EPO’s own lawyers), the EPO has been trying — and failing — to silence prominent critics

THE EPO‘s war on journalists has been covered here for almost a week. 5 days after WIPR broke the story it is still the most popular topic at that news site and this story has since then attracted wider and further media attention. There are 5 large threads in Reddit right now, in five different sections, posted by numerous individuals and groups we don’t know and aren’t typically focused on legal matters. This is going mainstream!

We are starting to find out some interesting things from interesting people. Another news site told us, “you are not the only person coming under pressure from the EPO right now.” It also prudently responded and advised us by saying “do assume, if you are not already, that your private e-correspondence is being monitored and read.” Recall the following older articles of ours:

This article will present my solicitor’s response to the EPO’s lawyers, who are actually — like much of the EPO's staff these days — from a private company that we won’t even mention. What the EPO has done here is amazing. It’s amazingly stupid. They took a crisis that mostly involved the ‘IP’ community into a mainstream audience. The EPO is now a laughing stock in many circles and emergency funds are now being retrieved from the taxpayers’ pot to hopelessly undo the damage (it will only backfire again, we can guarantee it).

“They took a crisis that mostly involved the ‘IP’ community into a mainstream audience.”As we know that not only Techrights was subjected to legal bullying by the EPO, we wish to make as much information as possible widely available. It can help any future victims of EPO bullying, as it includes legal material which shows how to respond to the EPO and call their bluff.

I spent 6 hours this morning going through piles of material. I was hoping to get a full E-mail trail (in and out, incoming and outgoing) suitably picked and redacted where required. It all started with a legal letter from a firm contracted by the EPO. Readers are advised to remember that we start this chronology a month and a half ago (15/10/2015 onwards), so some of the text below should be treated and read in contextual relation to the time and what was known back in October, well before additional information got leaked and covered on the Internet.

“The original/seminal nastrygram from the EPO was sent at 22:57 (local time) on Friday.”THREE LEGAL LETTERS have been sent by the EPO’s first law firm and another by the second one. We’re not talking about one legal letter here, contrary to some belief (as witnessed on the Web). Today’s publication of facts will be split into 3 PARTS in order to better organise the material and make it easier to cross-reference in the future.

The original/seminal nastrygram from the EPO was sent at 22:57 (local time) on Friday. It was sent not just to one E-mail address of mine but to several, saying: “Please see attached legal letter for your urgent attention.”

How the legal firm found several of my E-mail addresses is itself a bit of a mystery, but either way, these people were very eager to ensure that I read this mail late at night on a Friday. We won’t name the firm or the people who sent those letters. Also, as they demand confidentiality in all of their letters, we cannot or will not publish them. We won’t break the rules like the EPO so habitually does. We leave the dirty tricks to the EPO. We’re cleaner than them.

“We won’t break the rules like the EPO so habitually does.”Techrights wishes to thank David Allen Green (Preiskel & Co.) not just for doing a sterling job but also doing this out of goodwill. “I should be able to do this one pro bono,” he wrote to us at a very early stage, “still finding out.” David Allen Green was upset at the EPO’s behaviour and was immediately engaged in helping us, even on a weekend (remember that nastygram was sent late on a Friday night). David asked me for permission to respond to the lawyers and state that: 1. the letter sent was not in accordance with the pre-action protocol; 2. it is denied EPO has capability to sue; 3. the post was taken down without any admission of liability; 4. you require 14 days to provide a substantive response.

We ask dear readers to carefully consider the situation these people put me in late on a Friday night. It’s a kind of entrapment. If David Allen Green didn’t jump in as early as Saturday, the course of action from the EPO would probably have been more severe, not because it’s permissible but because they can exploit lack of awareness of the law, or even misrepresent the law (a familiar EPO trick). Here is the first response sent to the EPO’s contracted (external) lawyers, who seem to have sent similar nastygrams to other people.

Dear [Anonymised]

I have been approached by Roy Schestowitz in respect of your letter which was attached to the email below.

Your letter is remarkable. The letter does not accord with the relevant pre-action protocol. Indeed, it looks like that you are not even aware that there is a pre-action protocol.

But that is not the worst thing. The “urgent” letter was sent at 22:57 on a Friday, with a supposed deadline of noon the following Monday (that is, today). This is akin to simple legal bullying. It was clearly intended that Mr Schestowitz would be intimidated and be forced to act without proper access to legal advice.

It gets worse. Not only do you seem unaware of the pre-action protocol, you do appear to know that the Defamation Act 2013 is in force, which requires your clients to meet a test under section 1. You don’t even mention the appropriate statutory test, let alone attempt to show how your clients meet it.

And finally: the European Patent Office is a public body. Under the Derbyshire principle it would not be able to maintain an action in defamation.

I am currently putting the paperwork in place so that I can be formally instructed by Mr Schestowitz. As such this email is sent on his behalf but I anticipate to be formally acting for him very shortly. I am only writing now because of the misconceived deadline you selected.

It is not accepted that your letter is a valid letter of claim, and so my client’s position on this point is reserved. However, and without limitation to the foregoing sentence, you will now get a formal and substantive response to your letter within the 14 days set out in the protocol (that is, by 30 October 2015). In the meantime my client has taken the posts down without any admission of liability.

If your clients are daft and ill-advised enough to issue proceedings before receiving the formal and substantive response (and in breach of the protocol), I will advise my client to seek indemnity costs against your clients, in addition to his other rights and remedies.

My client’s position is reserved.

Yours sincerely

David Allen Green

The EPO’s goons then sent another nastygram. By that time, David Allen Green had already consulted specialists/domain experts, who brought up a legitimate point, so he responded as follows:

Thank you for this latest letter. I will take instructions.

In the meantime, I have now discovered the European Patent Office has no legal personality. If the EPO is not a legal person it cannot maintain an action in defamation or otherwise.

Can you please tell me exactly who your client is in respect of the threatened claim by EPO?

“They are becoming comical,” I said, at the very least “because yet another article which is factually correct they are trying to get removed now. Even large broadcasters serve to support my claim — hence they want to retaliate. They don’t like the bad publicity, which now [at that stage] reache[d] everyone in Munich.”

Remember that all of this was happening while the press was still hammering hard on the EPO for preferential treatment favouring large applicants. The EPO was hoping I would retract what I showed and perhaps help them censor the media (which was always linking to Techrights for evidence). Attempts to censor the original source of leaks or force a public apology/restraction is a classic censorship strategy. I just had to fight back.

Here is what my solicitor then wrote:

Dear [Anonymised]

We have read the second letter, and I am still taking instructions and will reply substantially by the stipulated deadline tomorrow.

In the meantime, however, note the following, including the renewed request for information.

So far: you have sent an initial letter which did not mention the relevant protocol, including making a threat on behalf of one named client (“EPO”) who cannot maintain an action in defamation (under the Derbyshire rule) and does not even have legal personality. You also forget to set out anything at all about the section 1 test in the initial letter.

With respect, you do not seem to actually know what you are doing. It looks like you are dabbling in defamation law. You are making basic errors almost every paragraph.

You have now – desperately – come up with “malicious falsehood” and “confidentiality” – but you do not set out the bases of your claims in respect of either claim. You should have realised the significance of the Derbyshire rule before you sent your threatening letter. But you failed to do so, and now you are now threatening actions in “malicious falsehood” and “confidentiality” without even providing basic information about how you clients make out the elements of either cause of action. It just looks ridiculous.

I asked you earlier today at 10:40 (below) to set out who your “EPO” client was; and despite the supposed “urgency” I have not had a reply, some five hours later.

Please respond by 1700 today stating which legal person your “EPO” client actually is. Otherwise I will assume you actually do not know.

Yours helpfully

David Allen Green

A later letter stated:

Dear [Anonymised]

Further to the below, this is the response to your second letter (of today’s date).

There is nothing whatsoever in the second letter to justify a deadline of tomorrow. So your client(s) can wait until the letter we are sending to you on or before 30 October 2015, in which we will deal substantially with both letters.

You said this morning this matter was “urgent”. I immediately sent you a straightforward query about the identity of one of your named clients, who is not even a legal person. Despite the purported “urgency” neither of you have bothered to respond at all, in over six hours.

In the interests of keeping costs proportionate, I do not propose to correspond further with you on either of the letters sent until the substantive response on or before 30 October 2015.

For completeness, and also in the interests of inter partes co-operation to control costs, I can tell you that my client reserves his right to plead a defence of truth to the claims, and this means that any pre-trial injunction you might seek would not be granted, pursuant to the rule in Bonnard v Perryman [1891] 2 Ch 269.

And, as I set out in the email below, if your clients are daft and ill-advised enough to issue proceedings before receiving the formal and substantive response (and in breach of the protocol), I will advise my client to seek indemnity costs against your clients, in addition to his other rights and remedies.

Yours sincerely

David Allen Green

Without much regard to the part about “keeping costs proportionate”, the EPO continued rather than relented with legal letters. Another one “came in on Friday,” my solicitor told me, “just an attempt to recover on the “no legal personality” point.”

Finally, here is the detailed letter sent to summarise all the points, including some of the above:

Dear [Anonymised]

I refer to my email below. I have looked at your letters carefully, and I have also discussed the contents with specialist counsel.

As you are both aware, the purpose and intention of the pre-action protocol is to facilitate the early exchange of information, so that cases can be properly dealt with. Accordingly, I am writing this email so as to obtain additional information which we require to consider your claim.

1. Legal personality

In respect of the European Patent Office, I am still not clear as to which legal person is seeking to threaten and maintain an action in defamation. In your first letter you said you were acting for the European Patent Office. Now you are saying you are acting for the European Patent Organisation. (It is just as well they have the same initials!) But the position of the European Patent Organisation is not what you set out in your initial letters, and now the position is confused and nees further clarification, as I set out below.

2. EPO Immunity from suit, from and costs and disclosure orders

Is your “EPO” client (whoever it is) formally waiving its legal immunity to countersuit and, more importantly, to liability for any costs and disclosure (and other) orders? Are you even aware that your EPO client’s immunity from suit (and to comply with costs and final orders) is at stake here? The position on your “EPO” client’s immunity from costs orders needs to be clarified as a matter of urgency, as it affects the costs sanctions and disclosure regime.

3. Derbyshire

In any case, the Derbyshire rule provides a complete defence to any claim your EPO client can bring.

If your “EPO” client is daft enough to put this trite proposition to the test, then I will seek indemnity costs from your client from the moment this obvious truth was pointed out to them. You say (in your 20 October 2015 letter) that you “reserve” your position on Derbyshire, as if some magical proposition will somehow appear which allows you to get around it. You will not get round it; your “EPO” client simply cannot maintain an action in defamation, as a matter of public policy.

4. Meanings

In respect of alleged meanings, it is currently impossible to work out your clients’ respective positions. This is for two reasons.

First, as mentioned above, your letter of claim does not mention the European Patent Organisation, and nor do the words complained of. You need to set out how my client’s words refer or relate to an organization which is not named by him, and how you say the words complained of apply to the European Patent Organisation. There is an “identification” issue which you simply have not addressed.

Second, your letters do not separate out the potential claimants, and indeed your inconsistent use of the apostrophe when mention your clients’ (or client’s) makes it impossible for us (and the court) to work out which of your clients you are talking about at different parts of your letters. Perhaps you did not know; but this needs to be clear at the earliest possible stage.

5. Libel bullying and the public interest

Without limitation to any of the above, there remains the horrible and discrediting issue of libel bullying. Here I want to raise the issue of the public interest. The work of the EPO is a matter of legitimate public concern. There is, as your client knows, a significant public debate as to the work of the EPO; a debate to which the EPO is itself contributing, and which is taking The effect of sending libel threats such as yours will be to inhibit that debate.

This is plain in your demands that entire articles be taken down, rather than just the words complained of. This cannot be justified. In essence this appears to be an exercise by a public body to discourage public criticism.

6. Further information now required

In essence, before we can properly reply to any threat that either of your clients may wish to bring, we now need the following information:

a. Separate letters before action for each client in respect of defamation, separating out their respective alleged meanings and words complained of;

b. An explanation as to why the EPO is not covered by the Derbyshire rule;

c. Confirmation that your EPO client is waiving immunity from countersuit, and waiving immunity in respect of compliance with costs and disclosure orders and final orders (together with an executed legal instrument by the President of the European Patent Organisation confirming this formal waiver);

d. A separate explanation in respect of each client of how that client meets the section 1 test in respect of defamation;

e. An explanation as to why your clients were demanding entire articles should be brought down rather than just the words complained of, and how this does not constitute “libel bullying”.

Please provide this information within seven days, by 6 November 2015, so that the aims of the protocol can be achieved.

7. Next steps

Once we have the information requested, and subject to what it says, we can then in turn set out the relevant defences under sections 2, 3 and 4 of the Defamation Act 2013. Facts will be defended as facts; honest opinions will be defended as honest opinions; and a public interest defence will also be set out. My client intends to defend his words on the bases available to him under the Defamation Act 2013.

So that the protocol will be complied with, I would then provide the defence(s) to you within 14 days of your provision of the information requested above, that is by 20 November 2015. In the event that your clients issue proceedings immaturely, and before 20 November 2015, your clients are put on notice of the costs consequences. I am acting within the scope and spirit of the protocol so as to resolve this at pre-action stage, and so should your clients.

If you do not provide the requested information by 6 November 2015, then we will regard the matter as having come to a close.

My client’s position is reserved.

Your sincerely

David Allen Green

In the next couple of parts we intend to show where things stand. It looks as though the EPO ran away with its tail between its legs. We thank David Allen Green (of Preiskel & Co.) for that.

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

This post is also available in Gemini over at:

gemini://gemini.techrights.org/2015/11/29/epo-twisting-defamation-law/

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. For 17 Days (and Counting) António Campinos Has Failed to Respond to Call for Compliance With the Law

    Team Campinos has been so arrogant and so evasive that there’s no indication (yet) that it will follow court orders (Willy ‘Guillaume’ Minnoye openly bragged about ignoring court orders and he's still cheering for the EPO's abuses); therefore, staff of the EPO takes collective action



  2. Raw: Elodie Bergot Breaking the Law by Threatening Against the Exercise of Fundamental Rights

    Over the years we saw a number of rude letters from Elodie Bergot, the grossly under-qualified spouse of a friend of Vichyite Benoît Battistelli; most of these we never published (we already have these and can always publish if the need arises), but those paranoid and insecure “Mafia”-like ‘cabal’ need to be exposed for the mobsters they are; for nearly a decade they’ve illegally bullied EPO staff in clear violation of the law (and for over 3 years António Campinos has kept those bullies on board); why does Europe do nothing and why is it never holding high-profile abusers accountable (only low-level facilitators)? Is it because the EU too is being infiltrated by them?



  3. Linspire Should Be Avoided in 2021 Just Like It Was Avoided 14 Years Ago

    The brand "Linspire" was brought back, but the agenda seems to be more or less the same, namely pushing proprietary software and serving Microsoft's commercial agenda (in 'Linux' clothing)



  4. The Death of Freenode Would Be Freenode's Own Fault

    Freenode is going dark and now it’s asking people to create accounts at IRC.com (just to get back into the network that they may have already occupied for decades) as if Freenode owns “IRC” as a whole



  5. Links 31/7/2021: KDE Progress and Activision Catastrophe

    Links for the day



  6. IRC Proceedings: Friday, July 30, 2021

    IRC logs for Friday, July 30, 2021



  7. The Smartest Meter of All

    Yesterday a lady came over to take our power readings (electric/gas meter); secure these people's jobs as they help protect people's privacy (dignity) at home



  8. [Meme] A Web of False Dichotomies

    A reminder that Techrights is fully available (all blog posts and wiki pages) in gemini://



  9. Freenode Shrinks by Another Quarter and Gemini Continues to Grow (For Techrights at Least)

    Freenode continues to perish faster than we've imagined; it's a good thing that we've had contingencies set up; regarding the monopolised and increasingly centralised Web, we're still making baby steps towards weaning ourselves off it



  10. Links 31/7/2021: Wine 6.14 and Chrome 93 Beta

    Links for the day



  11. European Media Does Not Care About Europe's Second-Largest Institution Crushing Basic Laws and Fundamental Rights

    New video about the latest publication from SUEPO (the EPO’s staff union); it was published yesterday, seeing that the “Mafia” (what EPO staff actually calls the management!) hasn’t done anything to comply with a wide-ranging set of court rulings from ILO-AT; why has the media said nothing about this and what does that say about today’s media? The material is all in the public domain, in widely understood languages, and SUEPO spoke about it more than 3 weeks ago.



  12. Links 30/7/2021: Distro Comparisons and Tootle Introduced

    Links for the day



  13. [Meme] Enforcing ILO-AT Rulings...

    We’re still waiting for a statement — any statement (direct or indirect) — from EPO management, seeing that almost a month has passed



  14. 'Open Source' as a Failed Initiative

    A closer look at the dire state of the Open Source Initiative, or OSI, which no longer protects Open Source (let alone software freedom) but instead helps openwashing, Microsoft entrapment, and a coup against the FSF



  15. [Meme] Rowan and António Sittin' on a Tree...

    How much longer can Team Campinos keep issuing tons of noisy and self-congratulatory puff pieces to (perhaps) distract from the elephant in the 10th floor of the Isar building (EPO HQ)? Staff won't wait for eternity.



  16. IRC Proceedings: Thursday, July 29, 2021

    IRC logs for Thursday, July 29, 2021



  17. Half the People in This Letter Are IBM Employees

    IBM seems to be continuing its war on the FSF because IBM wants to own everything (CentOS being ‘canned’ was just part of the plan)



  18. The OSI Song

    The sad demise of OSI, which has become little but a front group of proprietary software companies in pursuit of openwashing services (and outsourcing to proprietary disservices looking to eradicate copyleft)



  19. [Meme] OSI is Doing Just Fine

    So what if OSI is run by someone who raised money from Microsoft (to sell Microsoft a keynote slot in a copyleft event — the thing that Microsoft attacks through GitHub!) while funnelling the OSI's funds to a serial GPL violator?



  20. The OSI's Defunct Elections (Privacy Breach), Conflict of Interest (Nicholson), and Other Lingering Problems

    The above, together with an email from the OSI below, serves to show they’re re-running a bad election and — yet worse! — there appears to be a conflict of interest implicating the OSI’s sole member of staff!



  21. Links 30/7/2021: Audacity 3.0.3 and KD Chart 2.8.0

    Links for the day



  22. Links 29/7/2021: siduction 2021.2 and Xubuntu 21.10 Dev Update

    Links for the day



  23. GitHub is Racism

    Microsoft has the world's most racist code hosting repository; it wasn't like this when Microsoft took over as the racist policies were added to impress Donald Trump, who would later rig a procurement/tendering process to bail out Microsoft (10 billion dollars from the Pentagon, i.e. taxpayers)



  24. [Meme] António Lost His Power Over Patent Examiners

    Team Campinos at the EPO must be rather stressed at the moment; the people who do all the work can go on strike any time (or all the time, until/unless demands are met)



  25. European Patent Office is Going on Strike (or Strikes)

    The staff of the EPO is ready to strike like never before (dissatisfaction and outrage over 8 years of gross injustice, namely Battistelli's breach of fundamental rights, including the right to strike)



  26. Crying “Wolf!” About Systemd is Only Beneficial to IBM and Systemd Developers/Pushers

    Microsoft controls Systemd only to the extent that Systemd is controlled by GitHub, which is in turn controlled by Microsoft; But Systemd has long been on that proprietary platform (its developers don’t truly value software freedom) and this has long been a problem, even before Microsoft hijacked it for coercive power



  27. Links 29/7/2021: Mesa 21.2 RC3, FSF Responds to Microsoft's 'Hey Hi' Attack on Copyleft

    Links for the day



  28. IRC Proceedings: Wednesday, July 28, 2021

    IRC logs for Wednesday, July 28, 2021



  29. [Meme] No Crime Goes Unrewarded at the EPO

    It is more or less undeniable that from a legal and functional perspective the EPO is already defunct and is still perishing under a couple of Mafiosos whose sole interest is cover-up and grifting/plunder (of what’s left of the Office after almost 40 years of goodwill/reputation); the recent G 1/21 fiasco was just icing on the cake and the EU’s insistence on a patently unconstitutional UPC (more legal powers for chronic EPC violators) actually weakens unity in Europe (by discrediting the Union)



  30. [Meme] There's Always a Way (When Financial Results Are Not So Good...)

    Too many US ‘tech’ companies still lie to their investors. They choose financial engineering instead of real engineering.


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts