06.24.17

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The Tide Has Turned Against the Unified Patent Court (UPC) and It Finally Looks as ‘Alive’ as TPP

Posted in Europe, Patents at 6:59 am by Dr. Roy Schestowitz

TPP Is Dead. What Now?

Summary: The UPC is now stuck if not dead because officials are realising — however belatedly — that this entire charade was from start to finish just a coup d’état of the patent ‘industry’

THE stakes at the EPO are high and the threat of the UPC is still very real. The UP/UPC/UPCA can reemerge from the grave if we stop exposing the ugly reality behind it.

While software patents are on the decline/demise in the US (more on that later in the weekend), in Europe it’s the opposite and UPC would help such patents creep into a lot of nations without national debate on the matter. Yesterday we saw this new ‘article’ (shameless self-promotion) titled “The evolution of Software Patents in Europe” and it said that “[c]omputer programs appear on Article 52(2)(c) of the European Patent Convention (EPC), of 1973 as a subject matter excluded from the meaning of invention. However, in 2005, the European Patent Organization (EPO) had already granted over thirty thousand patents related to computer programs and, currently, computer-implemented inventions are the object of approximately 35% of European patent applications.”

“The stakes at the EPO are high and the threat of the UPC is still very real.”Well, they are not legal, but under Brimelow they created loopholes “as such” and Battistelli’s EPO openly promotes software patents every month, showing its utter disdain both for the EPC and the European authorities. When we wrote about the UPC about 9 years ago (it wasn’t known as “UPC” at the time) we focused on the aspect of patent scope and trolls. Nobody in Europe should want the UPC unless patent prosecution is one’s business. It’s all about shakedown and litigation without boundaries.

Working behind the scenes, so to speak, we have been trying to dig up more information about the UPC complaint in Germany. We are not 100% sure who is behind it. Yesterday I asked: Is it possible that Judge Siegfried Broß filed a complaint or will file one? Not that I think that he is the one who filed the complaint….

Benjamin Henrion (FFII) got in touch with the German Constitutional Court and said that the “Court tells me that there is one year window to file a complaint against UPC. In other documents they say one month…”

FFII too intends to file a complaint (maybe soon) and I, as a German national, can probably file one too. There is an effort to understand the deadlines for this. Henrion suspects “there is one-year window after the enactment of the law to file a complaint…”

“…Battistelli’s EPO openly promotes software patents every month, showing its utter disdain both for the EPC and the European authorities.”So don’t count on the UPC starting any time soon. We’d block it if it got close to it.

The German Constitutional Court’s staff told Henrion that they cannot share the details of the prior case for privacy reasons, but we think we know who is behind it. It’s just the tip of the iceberg and with weak and wobbly Brexit negotiations it’s unlikely that Germany can do anything anyway (it won't ratify unless or until the British situation/position is clarified).

In spite of the promise not to meddle with EPO scandals/affairs, one good ‘Kat’ has decided to rock the UPC boat a little. The other day he wrote this about the interview with Broß, noting: “The JUVE news blog has published a short interview with former Constitutional Court judge Prof. Dr. Siegfried Broß on the constitutional complaint against the UPC-ratification in Germany.

“Broß believes that the EPO Boards of Appeal are not independent from the EPO President and the EPO administration. He considers the recent reforms as being mere “cosmetics“.

“A further point was the unjust imbalance regarding legal measures against validity decisions. While a European Patent is retroactively invalid with a final invalidation decision of the EPO’s Boards of Appeal, the opponent can – if the EP is upheld by the EPO’s Board of Appeal – continue to attack the then national parts of the upheld European patent in national invalidity proceedings.

“The German Constitutional Court’s staff told Henrion that they cannot share the details of the prior case for privacy reasons, but we think we know who is behind it.”“Finally, Broß criticizes that the EPO would not commit to the protection of its employee’s fundamental rights guaranteed by national law and the EU Charter. A state transferring sovereign rights to a supranational administration has to safeguard that his nationals employed by such a supranational administration benefit from the same rights and standards as guaranteed by the German constitution. Prof. Dr. Broß strongly believes that these “fundamental constitutional deficiencies” have been overlooked and neglected during the drafting phase of the Unitary Patent Package.”

Thank you, Mark Schweizer, for bringing up the subject. It’s a refreshing break from the marketing/propaganda of Bristows at IP Kat. Might we see more meaningful articles — not just comments — in IP Kat?

The other day we mentioned the comment/attack from Wouter Pors, who resorted to attempts to discredit Broß. We are gratified to see we’re not alone in rebutting him. One response to him (Pors) said that “[t]he “reform” amounts to a substantial deterioration in respect of the personal independence of the Board members” and here it is in full:

It would be interesting to hear from Wouter Pors on which reasons the constitutional complaint is based and from which source he has his information. So far, I have not found any information on this point.
As far, as the judicial character of the Boards of appeal is concerned, the structural reform is cosmetic in respect of the new own building. It preserves the status quo in respect of the integration of the Boards into the general administration of the EPO, e.g. Investigation Unit conducting disciplinary investigations under exclusive control of the President of the EPO, Human Resources, EDP Systems.
The “reform” amounts to a substantial deterioration in respect of the personal independence of the Board members caused by the new elements of reporting connected with reappointment after 5 years based on reporting as well as payment based on reporting. The icing on the cake is the new rule that non-reappointed members are subject to a kind of non-competition clause. All this is a perfect system to prevent Board members from rendering decisions which might disturb the management to which the new President of the Boards of Appeal belongs. It will be interesting to see whether the suspended member of the Boards of Appeal will be reappointed. If not, this is the final proof that the EPO and its Administrative Council are willing to ignore the mandatory competence of the Enlarged Board of Appeal in suspension proceedings against Board members.
As far as the comparison of the EPO with the German system is concerned, there are two substantial differences:
First, a German authority cannot revoke the unitary patent, the EPO can and this without access to the UPC or any other court, an aspect carefully avoided by the ECJ in its decision on the Spanish complaint.
Second, revocation proceedings in Germany are embedded in a judicial system of two instances, the Federal Patent Court and the Federal Supreme Court (BGH). In the EPO, judicial review is exclusively entrusted to the Boards of Appeal. Therefore, they have to meet the acknowledged standards required for a proper court.

Someone else said to Wouter Pors: “You seem to pretend to know the reasons underlying the constitutional complaint – or what is the basis of your “understanding”? If so, please do enlighten us.”

He has not responded since. It has been over a day.

And also to Pors:

So Wouter, as you chose to remain silent so far, can we assume that your pretended knowledge about the contents of the complaint comes down to nothing but yet another case of you tooting your own horn by spreading fabricated information?

But at least you do seem to have a sense of humor when stating that the UPC “meets all the standards for an impartial and independent court”. Looks more like an exercise in whistling through the graveyard to me.

Well played. People are starting to pick up a fight with Team UPC, which offered nothing but lies and manipulation for a number of years. There is nothing they won’t do to get their way.

Another response to it came from Twitter: “« “fundamental constitutional deficiencies” have been overlooked », hum I’ve drafted this on May 2011 http://www.unitary-patent.eu/content/criticisms-governance-european-patent-office …”

Yes, we have been writing about this for years as well.

Francisco Moreno, another UPC critic, responded to Christopher Weber (a UPC booster) with: “Según antiguo magistrado, el Constitucional alemán esperará al final de negociaciones del Brexit para decidir si Alemania puede ratificar.”

It can be roughly translated to: “According to a former magistrate, the German Constitutional Court will wait for the end of negotiations of the Brexit to decide whether Germany can ratify.”

Yes, we said that a long time ago. So did some Germans who specialise in the field. Team UPC would rather not speak about it; but it won’t deny it!

“People are starting to pick up a fight with Team UPC, which offered nothing but lies and manipulation for a number of years.”Meanwhile, it is worth noting that SUEPO only ever seems to pick links that are ‘negative’ (i.e. realistic) about the UPC, such as this latest one. Many people now link to this article (in German) and EPO insiders are chatting in German [1, 2, 3, 4] to the effect of: “As yet, only small stones are turning… and the monster is still alive [yet] a dragon kills man with a stitch through the heart – Siegfried is the dragon slayer [...] The dragon is on the ground [...] Then, and only then, I’m going to rest!”

Yes, it is looking pretty grim for the UPC right now. And not just in the UK, which is one among several causes of deadlock.

As one comment in IP Kat put it yesterday:

Regarding the imbalance, let’s have a look at the German national patent system.

DPMA – Procedures
“Anybody can oppose the grant of a patent within nine months from the publication of the patent specification. …”

“Even after expiry of the opposition period, a patent in force can be challenged by an action for the declaration of nullity brought before the Federal Patent Court.”

So the German patent system is verfassungswidrig?

“It seems thus obvious that what happens in the EPO has an effect on the UP,” (Unitary Patent) said the next comment. To quote:

One fact should not be forgotten, whether one agrees with Prof. Broß or not. The Unitary Patent is nothing more than a European Patent granted under the EPC.

The competence of the EPO stops 9 months following grant, provided that there is no opposition. Just think of an opposition before the EPO against a UP. Why pay 20000€ in fees at the UPC, if in the first 9 months an opposition costs less than 1000€? This might be an important factor as the effect of an opposition is for all member states of the EPC, and not limited to member states of the UPC.

Just a simple question: when dealing with an opposition on a UP is the EPO free to designate any member of staff, or should such an opposition be exclusively be composed of nationals of member states of the UPC, or at least from the EU? Before grant, or in case of an opt-out, the question is moot, but not after grant when the opposition is against a UP.

It seems thus obvious that what happens in the EPO has an effect on the UP. That this is a Damocles sword hanging over the UPC cannot be denied.

By the way, has the constitutionality of the UPC agreement ever been checked? What is the basis for claiming that the UPC does meet “all the standards for an impartial and independent court”?

Whether the perspective of a decision or an opinion on the UPC by the CJEU might bring up some surprise, positive or negative, it will be difficult to escape it.

It might have been wiser to have asked the CJEU its opinion about the UPC before pressing forward at any cost and any rate. All the discussions on the post-Brexit stay of the UK in the UPC could also have been avoided.

One way to look at it is, the EPO scandals can undermine the UPC in the same way that UPC ambitions undermined the EPO and turned it into a hellhole. The two are closely connected. As the next comment put it: “Rumors say that the complaint that has induced the president of the German consitutional court to ask the German federal president to delay signing the implementing laws are related to the question whether a 2/3 majority of all members in both federal chambers, i.e. Bundestag und Bundesrat, is required. Apparently, presently, the two laws in question have only received a simple majority of the members present when the decision was made (in the Bundestag, the laws were accepted by 20-30 members that were present at approx 1 am, although all parties have declared that they are in favor)…”

“One way to look at it is, the EPO scandals can undermine the UPC in the same way that UPC ambitions undermined the EPO and turned it into a hellhole.”These rumours are not baseless. Based on what we know, this among other things is the basis for the complaint. “Spot-on,” said the next comment. “For the reasons you mentioned, I would be surprised if the German Constitutional Court had not been requested to ask the CJEU for its position on the EU law issues involved. The powers that be apparently tried to avoid at any cost a new CJEU case on the UPCA before its entry into effect, even at the price of enacting a legally doubtful system. A word from the CJEU is now needed more than ever.”

CJEU is further discussed in the next comment:

Whilst I have no idea whether they represent valid (constitutional) complaints under German law, the points raised by others about the connection between the UPC and the (well known) problems with the EPO certainly also appear to be “not wholly without merit”.

Thus, if those arguments do not yet form part of any complaint before the Bundesverfassungsgericht, would it not make sense for them to be added now (eg by way of a new complaint)? This might be a neat way of dealing with all of those nagging doubts that we are left with because of the absence of a CJEU opinion on the compliance of the UPP with EU law.

Perhaps the BVerfG could also tackle the point that I have discussed with Tim Jackson on another thread, namely whether the UPC does (or does not) form part of the national legal system of EU Member States – and, if not, whether there is any legal basis for the CJEU to accept preliminary references from the UPC.

By the way, whilst a lot of the above comments (regarding the question of compliance of the EPO with German constitutional law) have focussed upon avenues of appeal and the independence of the Boards of Appeal, we should not forget about the role played by the governing law, namely the EPC. For example, if German national law (and hence its constitution) incorporates EU Treaties, Regulations and Directives, do we also need to consider the question of whether the EPC is fully consistent with that body of EU law? As far as I can see, there are reasons to doubt whether the EPC is suitably compliant.

In relation to Battistelli (poetic): “That there are such suggestions now, to which anybody gives any credence at all, is exclusively the work of one man, a UPC-supporter, a man hell-bent on sabotaging the judicial function of the European Patent Organisation. Shameful! ”

Yes, exactly. This was said in relation to the EPO Board of Appeal as follows:

If there is any deficiency in the administration of justice, it occurs when an EPO Board of Appeal that is in the pocket of the EPO President revokes a patent.

As far as I know, until now there has never been any suggestion, ever since the EPO started in 1978, that any such Board is in any such pocket.

As another person points out, Battistelli “thinks he is above the law and has no respect for the separation of powers.” Here is the full comment:

Until the present president of the EPO, there has never been any doubts about the independence of the Boards of Appeal.

No president before the present one ever refused to propose renewals or appointments to the Boards, and all worked fine. In R 19/12, the EBA has shown that there are some problems with the independence of the BA, as the Chairman of the EBA was part of the management of the office. If the President had been acting in good faith, nothing like this would have happened.

Moreover, the present president thinks he is above the law and has no respect for the separation of powers. By escorting a member of the BA outside the Office without a decision under Art 23, the separation of powers has been grossly disregarded. An attempt of the Administrative Council to request the EBA to confirm the the dismissal of said member has grossly failed. There again the separation of power has been grossly disregarded. First you ask the EBA and then you decide, not the other way round.

The new structure of the Boards of Appeal Unit is a fig leave and in reality the BA are now less independent as before. They are not even allowed to decide upon their rules of procedure. They might give an input, but nothing says that it will be heard. It is like the General Advisory Council. It has to be heard, but the president can decide what suits him. But it has been consulted…..

The head of the BA Unit only holds the powers delegated to him by the president. If you call this independence, I do not.

The blame is thus not only for the president, but also for the Administrative Council as it has supported all the measures wanted by the president. Both have proven totally ignorant of what forms the core of a democratic society in which justice has to be independent.

It is to be hoped that the tree will on which all UPC proponents sit will be rattled and shaken. All those points will have to be thoroughly discussed before we end in a disaster.

In French one would say: mieux vaut tard que jamais.

Notice how a discussion about the UPC rightly became a debate about Battistelli’s abuses. In fact, “rumors from within the office suggest that the concerned member of the boards is to be dismissed” next week, according to this comment:

Here a further comment, which links the intervention of the German constitutional court to the lacking independence of the boards of appeal, as evidenced e.g. by the disciplinary action undertaken by the president of the office against a member of the boards, whith the full approval of the administrative council:

http://www.lto.de/recht/hintergruende/h/bverfg-stoppt-europaeisches-einheitspatent-epa-unabhaengigkeit-verfassungswidrig/

Incidentally, rumors from within the office suggest that the concerned member of the boards is to be dismissed at the meeting of the administrative council, next week. This would be a disaster for the European patent sytem as a whole.

If the judge on “house ban” gets officially dismissed, all hell will break loose! If someone can send us information related to that, please do so before the meeting of the Administrative Council commences.

More on the EPO Boards of Appeal:

On the value of the supra-national judicial function of the EPO Boards of Appeal, some anecdotes:

German client comes to me with problem. Competitor French, owns European patent, litigated already in FR and DE. Guess what, he won in Germany but the Frenchman won in France. What will the outcome be in the court in England was his question.

The HILTI case. Swiss patentee, litigates his patent all over Europe. Loses everywhere. Except in CH. There, he won. Surprise, surprise.

American client visits. Its EPO patent is being opposed by his big German competitor. Client question: how can we win in DG3, given that two of the three judges on the TBA have German names? Can you blame him for asking?

No wonder there is pressure for a UPC. It is just such a shame that some people have decided it is worth the price, namely, trashing DG3.

Well, “trashing DG3″ — as the above puts it — would trash the entire Office if not the Organisation. It would further legitimise claims that the place has gone rogue beyond repair. The EPO is already in chaos, but it can always get worse.

“More political pressure must be exerted on the small countries with regard to this unacceptable situation at the EPO,” one insider wrote, having also taken note of Bristows LLP’s James Boon publishing new UPC propaganda/decoy. “German UPC Ratification Postponed but yet Paid-for Media (again) focuses on UPC ratification in Estonia,” said the insider.

“Well, “trashing DG3″ — as the above puts it — would trash the entire Office if not the Organisation.”We saw Bristows doing exactly that before (regarding Estonia). We wrote about it. The fact that they now (probably) pay to ‘plant’ such brainwash rather than just post it in their worthless blog (barely any readers, unlike IP Kat or Kluwer Patent Blog) is quite revealing.

Remember, EPO staff, Bristows is your sworn enemy. It’s partly accountable for at least some of the chaos at the EPO, having bolstered Battistelli’s positions for a number of years.

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