07.18.17

New Paper Explains Why UPC Ratification Efforts Have Been Just About as Corrupt as EPO Under Battistelli

Posted in Europe, Patents at 6:09 am by Dr. Roy Schestowitz

Related: Guest Post: Is Germany’s UPC Ratification Postponement Related to Problems at the  EPO?

“When asked by Ars, the EPO’s spokesperson mentioned the imminent arrival of the unitary patent system as an important reason for revising the EPO’s internal rules…”

Dr. Glyn Moody

Ingve Stjerna paper

Summary: Yesterday, Dr. Ingve Björn Stjerna revealed serious Constitutional issues with the campaign for the Unified Patent Court, which resembles an aggressive Battistelli-esque coup, not a democratic process by any stretch of imagination

THE latest whitepaper from Ingve Björn Stjerna is out. It was published yesterday and several readers have already told us about it. This serves to reaffirm some of the things we wrote earlier this summer, in particular what we wrote about the anonymous complaint (probably anonymous for fear of personal attacks and more underhanded tactics by Team UPC).

“…it’s highly similar if not identical in other countries, where UPC ‘watchers’ are simply absent and thus, owing to darkness (lack of transparency), Team UPC and its ilk can make progress in the shadows (behind closed doors and with zero participation from the public).”
We have a similar situation elsewhere, albeit no Constitutional complaints, at least not yet. Yes, it’s highly similar if not identical in other countries, where UPC ‘watchers’ are simply absent and thus, owing to darkness (lack of transparency), Team UPC and its ilk can make progress in the shadows (behind closed doors and with zero participation from the public). As we noted here before, this is definitely what’s happening in the UK.

Every week we find new evidence of lawlessness that has spread well outside the EPO, e.g. to ILO, to European authorities, and much further.

We have basically sunk to state of disarray, where those who are rich and powerful want to get their way no matter what, irrespective of what’s actually legal. EPO workers will know the feeling…

“The Parliamentary proceedings on the ratification of the Agreement on a Unified Patent Court (“UPCA”) in Germany have revealed a state of political affairs which should cause concern to each citizen.”
      –Ingve Björn Stjerna
“A new article by Ingve Stjerna,” one reader told us, discusses the “The Parliamentary UPCA ratification proceedings in Germany” and the summary/abstract from the 9-page paper in English [PDF] says this: “The Parliamentary proceedings on the ratification of the Agreement on a Unified Patent Court (“UPCA”) in Germany have revealed a state of political affairs which should cause concern to each citizen. It shows the extensively used practice of so-called “second class adoptions” in which legislative decisions are made by a materially inquorate Parliament, because nobody raises the objection necessary for the annulment of the session. It was in this manner that the legislative acts on the UPCA were unanimously adopted by 35 cheerful Members of Parliament (“MPs”) in the second and third reading in the early morning hours on 10/03/2017. Five further unanimous decisions add to this picture. After the vote, all groups represented in the German Parliament denied providing the names of the participating MPs, three of four contacted MPs also rejected talking about the matter. A report on German law-making in the year 2017, in which the institutions involved could not care less about the German Constitution.”

The paper/article begins with lots of references to German law (legalese, numbers and procedure names). It then comes to the point about a nefarious vote at 1:30 AM. Concealing of the voters’ names turns out to have ensued! To quote: “Even more remarkable experiences ensue for those trying to find out the participants of the vote on 10/03/2017 from the Parliamentary groups. At the end of April 2017, I sent the following request to all four Parliamentary groups of the current Bundestag (translation from German): “On the early morning of 10/03/2017, the German Bundestag has discussed the Act on the Agreement of 19 February 2013 on a Unified Patent Court (BT printed matter 18/11137) in its second and third reading and has unanimously approved it. This session at 1:30 a.m. was attended by approx. 35 MPs. [about 5% of the total] Could you please let me know which MPs from your Parliamentary group participated in said vote?””

“This session at 1:30 a.m. was attended by approx. 35 MPs.”
      –Ingve Björn Stjerna
Here is the reply he got: “Please understand that I am unable to provide to you the names of the MPs who have participated in the vote.”

And then it says: “I had assumed that the decision for what there is “a reason” is made by the citizen in his enquiry, but apparently that was a misunderstanding. Particularly in case of a pitiful attendance of only 35 MPs, the TV recording covers all participating persons without a problem. According to the CDU/CSU group, the right of the public to know the participants of a vote is nonetheless limited to roll-call votes, no such right exists beyond. It is unknown why they are eager to keep the names of the attending MPs a secret. [...] Of course, in case of a public session the secrecy apparently desired by all Parliamentary groups ultimately cannot be secured which makes this attitude all the more surprising. Especially in cases with only a few MPs attending as presently, those willing to invest the necessary time will mostly be able to achieve a clear identification by comparing the TV recording with the MP profiles on the Parliament website. The 35 MPs unanimously voting in favor of the draft Ratification Act and the draft Implementation Act on 10/03/2107 seem to have been the following…”

“It is unknown why they are eager to keep the names of the attending MPs a secret.”
      –Ingve Björn Stjerna
He finally gives list of names (inferred from the video) and notes that “17 of these 35 MPs are members of the RA-BT which led the the deliberations on the drafts, 12 are lawyers. It seems that the RA-BT has not only been in charge of deliberating the drafts, but also of the adoption decisions in Parliament.”

Maybe that’s why they wanted their identities to remain an enigma.

He continues: “In the middle of May 2017, after the Parliamentary groups had denied any information on the participants in the vote, I asked the respective MPs of these groups responsible for Düsseldorf as my place of residence for a personal meeting during their “citizen’s consultations” in order to find out about the reasons for the secrecy.”

He notes that people voted on something they did not even understand or were grossly misled on. To quote: “As regards the decision-making in Parliament on 10/03/2017, speeches were put on file, especially by the rapporteurs of the Parliamentary groups, which again demonstrate a striking lack of knowledge about the topic in question.”

Then there’s the “SMEs” theme of lies. UPC-like regimes would harm SMEs, but law firms that claim to speak ‘on behalf’ of SMEs keep lying about it to the media (sometimes to SMEs also). To quote: “As is known, small and medium-sized enterprises (“SMEs”) are given said “substantial discount” – when fulfilling the respective conditions – only on the court costs at the Unified Patent Court (“UPC”). These, however, by and large correspond to the court costs of respective German proceedings, making them a much smaller problem than the reimbursable representation costs.”

“Particular attention should be paid to the comments on abolishing the national patent system.”
      –Ingve Björn Stjerna
Regarding the people involved: “The task of the European Patent Office is apparently unknown to him.”

Well, few of them know or care. That’s why the EPO has managed to get away with some serious violations of German law, for example. Quoting further: “The speeches once again demonstrate that none of the persons involved has even the faintest realistic understanding of the contents of the patent reform. The high costs are qualified as a necessary evil and are willingly accepted, while, sometimes in the same breath, it is alleged that the reform would lower costs and lend support to SMEs. Particular attention should be paid to the comments on abolishing the national patent system. Still in the EU legislative proceedings it had been underlined that the reform meant to strengthen the users’ freedom of choice.”

Well, mentioned then is Klaus-Heiner Lehne, whom we wrote about half a decade ago [1, 2, 3, 4]. The man is a total sham and it disgraces the entire system; we have not heard of him since, so maybe he tactfully retreated after whatever he had done (only to get caught).

“Those recklessly pushing a project like the patent reform regardless of any obvious legal risks and without their proper assessment as if there was no tomorrow, as it has now happened repeatedly, are willingly accepting that precisely the latter might at some time become a reality – for the legislative project.”
      –Ingve Björn Stjerna
“Against this background,” concludes the paper, “it does not come as a surprise that different references to possible risks from Constitutional law have been ignored by the operators, although in case of a transfer of sovereignty rights the settled case law of the BVerfG requires all constitutional bodies, authorities and courts to ensure that the respective requirements of the Grundgesetz are met. Apparently, not much regard has been paid to this despite the “reminder” in Art. 84(2) UPCA, demanding a ratification “in accordance with the respective constitutional requirements of the Member States”, in order to be able to enact the reform as quickly as possible. Those recklessly pushing a project like the patent reform regardless of any obvious legal risks and without their proper assessment as if there was no tomorrow, as it has now happened repeatedly, are willingly accepting that precisely the latter might at some time become a reality – for the legislative project.”

For the sake of readers from Germany, the same paper is available in German and we encourage readers to have a look and gain insight into the likely basis of this now-famous complaint rather than speculate based on deliberate lies from Team UPC. This is European democracy besieged by “special interests” (to put it politely). This is why we fought this thing for nearly a decade; Ingve Björn Stjerna published books on the subject.

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