07.13.18
Posted in Europe, Law, Patents at 11:29 am by Dr. Roy Schestowitz
Last week (and start of this week):
Today (from a slightly different perspective):
Summary: A ‘report card’ for the ever-so-intransparent (or nontransparent) new President of the EPO, who does not even bother obeying court rulings
THE NEW EPO PRESIDENT HAS JUST (one hour ago) completed the last working day of his second week in Office. He’s up there in the top floor with Raimund Lutz, Željko Topić and other people from so-called ‘Team Battistelli’, enjoying a penthouse with a bar (built secretly by Battistelli using undisclosed budget). Is the ‘new’ EPO any more transparent than the ‘last’ or the ‘old’ one (before EPO workers greeted each other “happy new year”)? Not really. There’s no indication of it.
Some people posted comments on the blog post of António Campinos, but these never showed up. They went right into an abyss. Campinos has since then made the “Comments” count vanish (see before and after screenshots at the top). So in a sense they merely decreased public participation (or an impression thereof). As we said a week ago, blog posts or words aren't enough to mend/heal the wounds. Campinos needs to actually initiate some action/s. Is he open to public consultation? Staff consultation? No comments have shown up in his first (and sole) blog post, so it was an effective as a “contact us” form, not actual commenting from the public. Welcome Mr. Campinos, the new boss, same as the old boss, Mr. Battistelli.
“Mr Campinos first impression is not impressive,” said the following new comment, which reveals that Campinos “has NO[T] officially contacted (much less invited) staff reps and/or unions…”
It also says that “NOTHING concrete has been done by Mrs Bergot, Principal Director HR who is vastly responsible for the social chaos at EPO, to execute the unambiguous judgment.” So the Rule of Law may never prevail again at the EPO. The EPO is happy to execute ILO judgments when these are in favour of the management; otherwise these judgments just get ignored. To quote the whole comment:
Sorry to spoil the party but according to reliabel insider information:
1 – since the ILO-AT judgment which foresaw IMMEDIATE reinstatement of Mrs Weaver and Mr Brumme, to this very date (09.07.2018 at 18:52) NOTHING concrete has been done by Mrs Bergot, Principal Director HR who is vastly responsible for the social chaos at EPO, to execute the unambiguous judgment.
2 – since his arrival at EPO one week ago, Mr Campinos has NO officially contacted (much less invited) staff reps and/or unions (but he started right away by circumventing them whilst meeting with “staff” directly (only a few of them and which one is unclear).
For someone who has been elected on a “social” mandate this is quite disappointing.
Future will soon tell if this changes for the better but since one has only one chance to make a first impression, the least that one can say is that Mr Campinos first impression is not impressive.
This was soon followed by another comment that said “only the croupier’s name changes.” It speaks of a form of bribery (vote-buying) by Battistelli:
I do not like the sound of this. Under his predecessor, cooperation has become an equivalent for transferring money to the small contracting states in exchange for unwavering support against all odds. No supervision at all, no accountability whatsoever. I guess Sepp Blatter was good at cooperation, too. The show must go on, only the croupier’s name changes.
With few exceptions here and there, the ILO-AT is still in the pockets of the EPO. Like Sepp Blatter we deal here with serious institutional corruption; but unlike Sepp Blatter, what we have here is impenetrable diplomatic immunity for perpetrators. Will Battistelli get a portion of the money he sent to his other employer (‘back-channeled’ to him in the coming months/years)? Who knows…
There’s meanwhile this new discussion of a lesser-known case, this one concerning Laurent Germond:
The Tribunal validated as “balanced” the temporary composition of the Appeals Committee between 1 January and 30 June 2017, which was relied upon in light of the CSC’s refusal to appoint members of the Appeals Committee (Judgment 4049). The Tribunal noted that two out of four members of the Appeals Committee were chosen “[b]y way of exception” among eligible staff members in the pool of staff representatives and that the composition was thus in accordance with the relevant provisions “which are not ambiguous”. The ILOAT’s judgment in this regard will bring stability for the Office’s internal means of redress which operate under the authority of external Chair and Vice-Chairs since October 2017.
Wherever relevant medical issues are identified during a disciplinary procedure, the Tribunal clarified the duty of the Disciplinary Committee to order a medical assessment and determine its scope. The Tribunal also stressed the duty of staff to cooperate with medical proceedings, which is the counterpart to the Office’s duty of care, and that in instances where a staff member refuses to undergo a required medical examination or to provide relevant medical background information, “the examination can be undertaken on the basis of documents, if necessary.” (Judgment 3989, consideration 4; cf. Judgment 3986, consideration 8).
In sum, the EPO-related judgments should be taken as a reminder of the need for the administration and all staff members to work together to enter into a constructive social dialogue and, in case of litigation, ensure the functioning of the legal protection of staff through an efficient system of internal and external means of redress.
Laurent Germond, Director
Directorate Employment Law
Märpel thinks that Mr Germond wishes for “the administration and all staff members to work together ” seem to forget that the it is the administration that dismissed staff members even when the appeal committee gave a positive opinion. He also seem to forget that the same administration created a new investigation unit with vast powers and absolutely no normative control. Last but not least, he also forgets that the same administration later modified the internal means of redress several times until they practically gave the administration 100% success.
The reason we’ve been attracted to EPO scandals is the sheer abundance of them. It’s a magnet of abuse, just like the UPC lobby, which we dubbed “Team UPC”. Yesterday we wrote about Team UPC's spin regarding the short statement from the British government — one that’s now being covered by World Trademark Review (“”No closer to clarity” – UK’s Brexit White Paper offers clues to future IP approach, but big questions remain”) and by Edward Nodder (Bristows) with that word “confirms” again (only hours ago). He said that in relation to something which boils down to a lie or intentional misinformation.
Bristows LLP has been marketing these ‘unitary’ patents for a number of years; it may have lots of explaining to do, e.g. to clients, if this advice was all for a bogus idea, just like those bogus job openings it kept advertising (the EPO is doing the same thing right now).
“This new development once again confirms the UK’s commitment to the project to establish a unified European jurisdiction on patents, as already made clear by its ratification of the UPC Agreement,” Nodder wrote. No, nothing has been confirmed and there are many barriers remaining. The EPO does not even obey the law when it’s expected to obey it like everybody else; giving it control over the UPC (courts) would be worse than insane. █
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Posted in Deception, Europe, Patents at 12:59 am by Dr. Roy Schestowitz
But Team UPC will leap and grab any morsel of hope it can find
Summary: The Unified Patent Court (UPC) isn’t going anywhere and the UK merely “explores” what to do about it; for Team UPC, however, this means that the UK “confirms intention to remain in Unitary Patent system after Brexit” (clearly a case of deliberate misinformation)
POOR Team UPC. Nothing goes their way lately. Their ‘hero’ Battistelli has left the EPO, leaving in charge somewhat of an uncertainty/question mark. Constitutionality challenges (more than one) render the UPC pretty much dead (Team UPC has truly gone bankers over it). This is how media owned by patent law firms (Out-Law.com) covers it this week:
On 29 June, Hungary’s Constitutional Court published a ruling in which it held that the terms of the UPC Agreement are incompatible with Hungary’s constitutional framework.
The Hungarian court took into account the fact that the UPC Agreement is not formal EU legislation but an international treaty formed through the ‘enhanced cooperation’ mechanism provided for under the Lisbon Treaty. It permits nine or more EU countries to use the EU’s processes and structures to make agreements that bind only those countries. It is through the enhanced cooperation mechanism that plans to develop a new unitary patent and UPC regime have been developed.
The Hungarian court said it would be unconstitutional to allow jurisdiction for resolving private legal disputes to transfer from Hungary’s courts to an international institution – the UPC – that is not established within the boundaries of the EU’s founding treaties, according to a summary provided by Hungary’s Intellectual Property Office.
At least 13 EU countries, including the three with the most European patents in effect in 2012 – Germany, France and the UK, must pass national legislation to ratify the UPC Agreement that the countries behind the new system finalised in 2013.
Hungary’s Constitutional Court’s decision can only further embolden Germany’s FCC to do the same. Irrespective of that, there may be more complaints on the way. It’s likely that pretty much every nation that signed/ratified UPCA violated its very own constitution (they never bothered checking). But let’s leave all that aside (for now at least), recalling the very recent statement from the British government that it would depart from CJEU, a core part of UPCA. Do they know what they’re doing? Evidently not. It’s like the typical “Brexit shambles”. There is no Unified Patent Court (UPC), there’s no Brexit, and there’s absolutely no certainty about anything. If the UPC is not constitutional in a number of member states, that further contributes to uncertainty, not to mention what happens in Spain and in Ireland.
Those who follow Team UPC closely enough might have already noticed some “tweets” about a new paper titled “The future relationship between the United Kingdom and the European Union”.
“Hungary’s Constitutional Court’s decision can only further embolden Germany’s FCC to do the same.”“UK’s white paper on future relationship with the EU includes a reference to maintaining membership of the future EU-wide unitary patent system, but no mention at all on how current EU trademarks and designs will be implemented in UK after Brexit,” wrote Robert Harrison about this page.
The text they highlight is very clearly in conflict with other statements, including very recent ones about CJEU. But don’t let “bad” facts get in the way of “good” propaganda, right? This is, after all, Team UPC we’re talking about. Facts matter not.
Max Walters wrote (with a selective screenshot):
UK’s #Brexit white paper confirms intention to stay IN the Unified Patent Court post exit. #patents #UPC
Really? Does the word “confirms” belong here? “They carefully do not mention the CJEU relation here,” Benjamin Henrion immediately told him. They’re basically just contradicting even themselves.
“The text they highlight is very clearly in conflict with other statements, including very recent ones about CJEU.”Some people have spotted that too. “However Luke,” one of them said, “big issue with CJEU red line. Wouldn’t be at all surprised for UK to be part of UPC but lose court. Would be huge loss to UK IP…”
UPC is not a “gain” for the UK; it’s actually a big loss. It has already wasted time and money; they’re assessing something which will never materialise. The person also said: “Yes agreed on the fudge & the position of patents, but the big issue will be when it’s tested in CJEU. Think we may also find Brexiters suddenly ‘finding’ patents when things turn nasty…as they will do. Moot point of course if no deal…”
“UPC is not a “gain” for the UK; it’s actually a big loss. It has already wasted time and money; they’re assessing something which will never materialise.”Managing IP, which participated a great deal in UPC propaganda over the years, said: “The UK government’s new white paper outlines what it wants from intellectual property after it leaves the EU – but some IP professionals feel it doesn’t say enough” (Patrick Wingrove has at least bothered mentioning the critics, noting that the government contradicts itself on this issue).
Here’s what a ‘front group’ of Managing IP wrote:
Observation below. #WhitePaper dealt with geographical indications (EU doesn’t mess around with this) and UPC/unitary patent but nothing on trade marks/designs (incl. Union judicial and administrative procedures, e.g. EUIPO). Also see EU’s progress report https://ec.europa.eu/commission/sites/beta-political/files/joint_statement.pdf … https://twitter.com/rjharrison000/status/1017390820176035840 …
The obvious issues didn’t bother staunch members of Team UPC, who proudly wear a “Team UPC” badge in their tweets (they actually use this term). One of them promoted his own article, titled misleadingly “UK confirms intention to remain in Unitary Patent system after Brexit” (here’s that word again, “confirms”).
Nothing was confirmed. Going back to Out-Law.com, its headline says that “major hurdles remain” and here’s why:
The proposals set out in the paper are worthy of “close consideration” by negotiators, but raise “a series of challenges which will need to be overcome if the deal is to have a chance of being concluded and ratified within the short period of time remaining”, according to Brexit and EU law expert Guy Lougher of Pinsent Masons, the law firm behind Out-Law.com.
“Both sides of the negotiations know that the timeline for negotiations is exceptionally tight,” he said. “There remains three months until the all-important European Council meeting in October which is officially the end of the EU’s negotiating timeline. Major progress needs to be made by then if a deal is to be done and ratified by March 2019.”
“If the challenges can be overcome, a deal may be possible. However, given the scale of the hurdles, businesses should consider that a ‘no-deal’ scenario remains a distinct possibility and should prepare accordingly,” he said.
UPC is not possible (in the UK or anywhere else) for many reasons, among which UPC being unconstitutional and Brexit incompatible.
Different wordings (not “confirms”) were used by other publishers, e.g. “will explore” and “to explore”. There are several headlines to that effect, e.g. “UK will explore staying in the UPC post-Brexit” and “UK to explore Unified Patent Court options in Brexit negotiations [1, 2].
“Even Kluwer didn’t say “confirms”; people who use this word seem rather self-deluding at this point.”“Kluwer Patent blogger” (typically Bristows) said that the “UK intends to stay in the Unitary Patent system post-Brexit” (their headline).
Even Kluwer didn’t say “confirms”; people who use this word seem rather self-deluding at this point.
As for the Bristows-dominated IP Kat, it was covered there not by Bristows but by Eibhlin Vardy, who quoted the relevant passages (highlights are ours):
150. There is a long history of European cooperation on patents, which can be costly to enforce in multiple jurisdictions. Most recently, this includes the agreement on a Unified Patent Court to provide businesses with a streamlined process for enforcing patents through a single court, rather than through multiple courts.
151. The UK has ratified the Unified Patent Court Agreement and intends to explore staying in the Court and unitary patent system after the UK leaves the EU. The Unified Patent Court has a unique structure as an international court that is a dispute forum for the EU’s unitary patent and for European patents, both of which will be administered by the European Patent Office. The UK will therefore work with other contracting states to make sure the Unified Patent Court Agreement can continue on a firm legal basis.
152. Arrangements on future cooperation on IP would provide important protections for right holders, giving them a confident and secure basis from which to operate in and between the UK and the EU.
So they actually use the word “explore”; there’s no confirmation there at all. They rightly take note of the EPO’s role, obviously overlooking all the scandals (including judicial scandals) that take place there.
“They rightly take note of the EPO’s role, obviously overlooking all the scandals (including judicial scandals) that take place there.”All in all, the “tl;dr” version of this “UK government White Paper” (on UPC at least): we don’t know if we can participate in UPC, but we’re checking what we be done. Anything beyond that would be pure spin or an ‘artistic’ interpretation. █
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