02.02.19

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Concerns About Stephan Harbarth’s Unitary Patent (UPC) Vested Interests and His Entrance Into the Constitutional Court That Decides on UPC

Posted in Europe, Patents at 10:55 am by Dr. Roy Schestowitz

António Campinos for UPC
Source

Summary: Dr. Ingve Björn Stjerna’s complaint about the Unified Patent Court Agreement (UPCA) in light of the newly-appointed judge at the Federal Constitutional Court (“BVerfG”), who moves there from the Bundestag (at the centre of Stjerna’s complaint because of a notorious vote by a fraction of members at 1AM in the morning)

THE previous post noted that software patents granted by the European Patent Office (EPO) would likely not withstand scrutiny in European courts — the same thing that’s happening at the U.S. Patent and Trademark Office (USPTO) because of SCOTUS and 35 U.S.C. § 101. On his first week on the job António Campinos publicly promoted the UPC, which is means for bypassing European courts. Knowing Team UPC, we remain concerned that they’ll pull dirty tricks — even outright corruption — as they did before.

“Knowing Team UPC, we remain concerned that they’ll pull dirty tricks — even outright corruption — as they did before.”Just before the weekend the patent trolls’ lobby or propaganda mill IAM, which the EPO had paid to promote the UPC, spoke of “pharma UPC strategies” under the heading “Getting to the heart of the life sciences patent debate” (link omitted intentionally). Why would they suggest such a strategy after admitting that the UPC is likely dead?

As it turns out, there’s this latest update from the complainant against UPC/A in Germany. In his own words:

On 30/11/2018, Prof. Dr Stephan Harbarth, a Member of the German Parliament (“Bundestag”) for the Conservative party (“CDU”) was appointed judge at the Federal Constitutional Court (“BVerfG”), where he is since chairing the First Senate (cf. the press release of the BVerfG of 30/11/2018 [German language]). Previously, the majority of the German Bundestag had approved his appointment on 22/11/2018 (see Plenary Protocol 19/65, p. 7447, 7454 [German language]). He was also elected as Vice-President of the BVerfG by the Federal Council (“Bundesrat”) on 23/11/2018 unanimously (see Plenary Protocol 972 [German language], p. 411), which designates him to succeed the current President of the BVerfG after the expiry of the latter’s term of office in two years’ time.

This matter is also of interest for constitutional complaint proceedings 2 BvR 739/17 on the ratification of the Agreement on a Unified Patent Court (“UPCA”) in Germany.

Mr Harbarth, Member of the Bundestag since 2009, was a deputy chairman of the Conservative parliamentary group (“CDU/CSU”), the largest in the German Bundestag, and was also practicing as a lawyer. In the latter function, he was managing partner of the law firm SZA Schilling Zutt & Anschütz and was among the Members of Parliament with the highest additional income. In view of his election as a BVerfG judge and the resulting statutory incompatibilities (cf. sec. 3(4)1 Act on the BVerfG [“BVerfGG”]), he has meanwhile resigned from his seat in the Bundestag and suspended his admission to the bar; he has also departed from the aforementioned law firm.

This was publicly mentioned yesterday by Benjamin Henrion (FFII) on a couple of occasions [1, 2]: “A Unitary Patent Court public consultation in Germany was denied/postponed thanks to Mr Harbarth, a CDU/CSU politician that is now becoming member of the Constittutional [sic] Court, that has to rule on the Stjerna’s complaint! Insane! [...] UPC German Constitutional Court now infected by patent believers “In the past, Mr Harbarth has strongly supported the European patent reform”…”

“It is also worth remembering that a UPC booster, Dr. Ernst, got a high-paying job (Vice-President) by appeasing Battistelli and then Campinos.”Are we seeing interest groups walking in the courtroom? Seeing what they previously did in the Bundestag, it would not even be their biggest scandal to date.

It is also worth remembering that a UPC booster, Dr. Ernst, got a high-paying job (Vice-President) by appeasing Battistelli and then Campinos. He started the job a month ago, becoming subservient after being a fake 'boss' to these two Frenchmen, who are connected to Team UPC. This picture says it all because a very major booster of UPC was all along Michel Barnier (shown below with his fellow Frenchmen):

The three Frenchmen

It’s all about vested interests. The three Frenchmen above have plenty to gain by tilting the court into French presidency (allocated to France, with some rumours about Battistelli being ‘reserved’ for the job). This brings us to the following new comment from Kluwer Patent Blog:

…do not underestimate AC members. AC members may do more than cashing allowance and perks. Some have been smarter and taken their position to advantage to reach top management positions within the EPO.

An interesting case in the history of the relationship between the AC and EPO management is the turning down of the EPO proposal for 3-year deferred examination by the AC. The reason was money : by prolonging pendency, the proposal would have enabled the EPO to collect renewal fees for a longer time, and as you know, the EPO gets 100% of renewal fees for pending applications while it gets only 50% of renewal fees collected by member states after grant.

The EPO has recently launched a new online consultation on this topic, apparently to prepare for a new bid to the AC. It remains to be seen what will be the position of the current president.

The EPO is a corrupt institution; Team UPC is looking to benefit from corruption because all it cares about is increasing the amount of litigation and lowering the patent bar (closely related and correlated to this). What better way than to write the law themselves and put their moles in charge of the entire system, including courts at multiple levels? There’s plenty of money at stake and lawyers wish to tax the public as much as possible.

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