11.21.19

Justice Peter Huber Speaking to a Front Group of Team UPC May Compromise the Integrity of the FCC and Its Outcomes

Posted in Europe, Law, Patents at 12:37 pm by Dr. Roy Schestowitz

Summary: The public reaction, even from some legal professionals, isn’t too positive, seeing how judges from BVerfG (FCC) speak to the mouthpieces of Team UPC (biased and in the pockets of the litigation ‘industry’)

IT IS rather worrying. Earlier today we recalled some conflict of interest and now we see bad words shared with Team UPC’s media, almost as if Team UPC gets some sort of ‘magical lane’ into constitutional courts, too.

“Looking at some early comments about Huber’s remarks, pretty much all the comments (at this time) speak about how inappropriate it was for him to speak to this co-called ‘media’ (think tank, lobbyists, pressure group) — the same thing we initially stated.”Why would a high German judge (a “justice” even; like SCOTUS judges) be speaking to a hive of misinformation and trolls? It’s funded by many Team UPC firms and worse. Was he not aware? The contents of the interview have already caused some controversy and we shall come to that in a moment.

Suffice to say, Team UPC is totally exploiting this. Gregory Bacon of Bristows is now openly bragging about this FCC judge speaking to Team UPC about the constitutional complaint. “If the BVerfG’s decision is that the complaint be dismissed,” he wrote, “this removes one factor holding up the start of the proposed unitary patent and UPC system, but the other factor, i.e. Brexit, remains.”

There are several more factors, but Bristows ignores these. Because it’s inconvenient…

But everyone knows Bristows is a pack of liars. Even some university professors share that sentiment.

Looking at some early comments about Huber’s remarks, pretty much all the comments (at this time) speak about how inappropriate it was for him to speak to this co-called ‘media’ (think tank, lobbyists, pressure group) — the same thing we initially stated.

MaxDrei said:

I find it regrettable that a judge of Germany’s highest court should use the B word in an interview with a journalist. Competition with the over-touchy, over-reactive Tweeter in the White House is not what I expect from the court.

Let’s think about it a bit more calmly. Suppose the journalist had avoided inclusion of the provocative word “delay” in their question. So; for example: “Is BREXIT slowing down the process of coming to a judgement?”. Would Judge Huber’s answer to the question thus expressed have been quite so intemperate?

So I wonder, did MIP deliberately include the provocative word “delay” in order to goad the judge into a response that generates more publicity for MIP or, worse, to give the judge an opportunity to give his court a more edgy presence with the public?

“Concerned observer” soon followed:

Is it just me, or is the interview provided by Justice Peter Huber highly irregular?

I am struggling to recall a prior occasion on which a lead judge on a case discussed that case with the media prior to providing their judgement. Whilst the interview arguably only touches upon minor details, it is surely contrary to the interests of justice for a judge to make public pronouncements on ANY matters related to a case prior to final judgement. And to make such pronouncements to the media (instead of directly to the parties to the case) is also most peculiar.

Perhaps most troubling of all is that Justice Huber is quoted as saying “Brexit is of no concern” to the BVerfG. This could perhaps be interpreted as referring solely to the timing of the BVerfG’s judgement. However, given that the precise legal identity of the UPC (and, therefore, of the Participating States to that court) could well be a crucial issue upon which the BVerfG needs to decide, that statement is careless at best.

And back came MaxDrei with this:

In MIP, the by-line below the title of the Huber interview report is “Patrick Wingrove, London”. So was the interview conducted in English or in German. I guess that Judge Huber has good English but is not bi-lingual or an English native speaker. Did Judge Huber give answers in German, later translated by MIP into English, or did he actually give in English his answers to these supremely delicate and controversial matters?

In particular, his “no concern of mine” answer sounds flippant but I give him the benefit of the doubt. I guess he wanted to say that internal UK politics is no concern of his, his concern being exclusively the DE Constitution and EU law. Dragging the UK into his deliberations is indeed not needed. This year it is the UK. Next year it could be another EU Member State.

MaxDrei also asked in IP Kat:

Can anybody tell me whether Judge Huber gave his replies to MIP in his native German, or in English? I mean, “no concern of ours” and “bullshit” strike me as unlikely to have emerged from the mouth of a Supreme Court judge offering comment on one of the cases in his pending docket.

Is MIP sexing the answers up? Or is it Peter Huber who is looking to raise the profile of his court?

Thinking also about another recent leap into the arms of the press, a recent BBC interview, that old advice to “Look before you Leap” springs to mind.

Watch the replies: “Max, the interview was in English.”

“When the top/key judge in your case uses the word “bullshit” (even in English!) something is likely amiss.”MIP too commented: “The interview was conducted in English.”

Looking at social control media, Birgit Clark (former ‘Kat’) wrote: “We can always ask the BVerfG press office? I am slightly puzzled by the choice of vocabulary…” (alluding to “bullshit”)

When the top/key judge in your case uses the word “bullshit” (even in English!) something is likely amiss. But the key issue isn’t that he spoke out like this but who he spoke with.

Alex Robinson (Team UPC, he calls himself that) said: “No, as in we won’t see a decision in 2020? (I maintain some scepticism about this too as it has already been on the list for 2018 and 2019!)”

“There seems to be great uncertainty about how it came about and in past years we saw some media — and Bristows in particular — claiming to have gotten a word from institutions without being able to verify that; they possibly lied, they may have made the whole thing up, wholly or partially. We wrote about those incidents many times.”He also said: “If there is no interview then why is MIP claiming there is? All very peculiar.”

There’s confusion even among colleagues. Max Walters wrote: “I’d also be intrigued to hear what they have to say…”

There seems to be great uncertainty about how it came about and in past years we saw some media — and Bristows in particular — claiming to have gotten a word from institutions without being able to verify that; they possibly lied, they may have made the whole thing up, wholly or partially. We wrote about those incidents many times. These people play very, very dirty games. They’re immoral and desperate.

“Never understood why FFII eV was denied access,” Benjamin Henrion said, “while the EPO or the BDI could file an amicus brief, and have privileged access to the case which is “secret” #transparency #favouritism”

“These people play very, very dirty games.”The same goes for various Team UPC ‘reporters’ (lobbyists of the litigation giants who are also close to Battistelli). Why are they getting special treatment? CEIPI (Battistelli) tweeted: “The case holding up the Unified Patent Court will be decided in the first quarter of 2020, according to Justice Peter Huber of the German Federal Constitutional Court #UnifiedPatentCourt #UPC #UnitaryPatent #Brexit cc: @xavier_seuba @TeresaCalixto https://twitter.com/ManagingIP/status/1197201103751983105″

So CEIPI (Battistelli) too is smelling ‘blood’.

What’s noted above is very much noteworthy. If judges are eager to rub shoulders with Team UPC lobbyists, what does that tell us about the case — and worse — what does that say about the FCC’s impartiality?

As someone has just put it in very general terms: “It’s a lobbying lollapalooza in Brussels right now. Everywhere you turn conferences, meet-ups and “events”. The sad irony is that for mainstream media, EU policy news right now is boring. We’ll get to it when the sausage is pretty much made and the debate lines set.”

“To see judge/justice Huber mingling with these lobbyists is at the very least concerning. It can harm also the reputation of his FCC colleagues.”Earlier this week the EPO bragged about lobbying Brussels (we responded to that) and litigation events are being set up by MIP with direct support from the EPO. Quite a few of these are pro-UPC events, so what does judge/justice Huber’s interaction with MIP tell us?

All these “events” are lobbying platforms (like "FOSSPatents Conference" for FRAND), bankrolled by particular businesses for particular outcomes, findings, stacked panels etc.

To see judge/justice Huber mingling with these lobbyists is at the very least concerning. It can harm also the reputation of his FCC colleagues. █

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