03.14.21

The German Constitutional Court Needs to Recognise That the EPO’s Tribunals Are Not Independent and EPC Has Not or Isn’t Being Honoured for Quite Some Time Now

Posted in Europe, Law, Patents at 6:15 pm by Dr. Roy Schestowitz

Video download link

Summary: The software patents situation at the EPO isn’t being resolved and probably cannot be resolved as long as corrupt management besieges judges who were all along supposed to be entirely autonomous and unafraid of Office management

THE EPO isn’t functioning. Granting lots and lots patents is “functioning” in the same sense pouring oil into the ocean (or up from the bottom of the ocean like BP did a decade ago) is “extracting”…

“The notorious bodyguard from the EPO is also in prison. Will the people he ‘guarded’ (with illegal weapons) join him?”At this moment of time, given the opportunity to speak to patent examiners discreetly (European patent examiners) you’re almost always guaranteed to hear that patent granting collapsed in terms of quality or validity, which are pretty much the same thing (surrogates). Even the EPO’s own studies (internal) confirmed this, but the EPO muzzled those who studied the matter. That’s just how defunct the Office has become. It’s a truth- and science-denying institution, eager to just pile up loads of money and then plunder that money by shrewdly-engineered schemes and scams. Nicolas Sarkozy is in prison. Who’s next? The notorious bodyguard from the EPO is also in prison. Will the people he ‘guarded’ (with illegal weapons) join him? Some are connected to Sarkozy.

The lockThe only astounding thing, as pointed out in the video above, is that there seems to be coordinated silencing in patent blogs, which seem highly determined to suppress discussion about all that, even in the comments section.

Recently, besieged judges decided to “play it safe” and say OK to a President who had pressured them to approve software patents. We’ve covered it before and we have cited some ‘coverage’ (from self-serving law firms) in Daily Links since then. No real reporting or journalism about it, just shameless marketing from lawyers looking to profit from European software patents, even of courts throw these out. Just like Benoît Battistelli, António Campinos is pressuring the judges to rule in a particular way, which means there’s no independence at all. Even by their own admission. In the weekend we caught up with two more pieces about it, both from law firms and their front groups. Or media operatives.

The video above discusses this self-serving post which said: “Hot off the press: The EPO has issued a decision on G1/19, which relates to the question of inventive step and simulations/simulators.”

It’s actually a day late, not “Hot off the press…”

“As a brief summary,” they said, “the Enlarged Board of Appeal has ruled that a simulation of a technical system can solve a technical problem by producing a technical effect going beyond the simulation’s implementation on a computer.”

Did the Board have independence? No. More laughable was this ridiculous puff piece about “hey hi”, which spoke to no software professionals or representative body of theirs. They spoke to representatives of patent trolls, such as Bristows. They said: “The EPO’s enlarged board of appeal handed down the decision (G1/19) yesterday, March 10, holding that the established case law on computer-implemented inventions (CIIs) also applied to computer-implemented simulations.”

Where are the actual software professionals? Nowhere. Where’s the mention of the lack of judicial independence? Nowhere, of course. We’re meant to just blindly believe that the issue went away. Like magic!

Dr Ingve Björn Stjerna has meanwhile translated Justice Huber’s remarks on EPO complaints. A day after the decision above he published the following in his Web site:

Constitutional court judge Prof. Huber on the situation at the European Patent Office (11/03/2021)

As is known, several constitutional complaints against acts of the European Patent Office are currently pending before the German Constitutional Court (“BVerfG”), in which, inter alia, a violation of the fundamental rights to effective legal protection (Art. 19 (4) GG) and to the lawful judge (Art. 101 (1) sentence 2 GG) is complained of (cf. docket no. 2 BvR 2480/10, 2 BvR 421/13, 2 BvR 786/15, 2 BvR 756/16 and 2 BvR 561/18).

In the newest edition of one of the leading German commentaries on the German Grundgesetz, BVerfG judge Prof. Peter Huber, who is the judge rapporteur in the above-mentioned constitutional complaint proceedings, comments on the situation at the European Patent Office with regard to Art. 19 (4) GG as follows (von Mangoldt/Klein/Starck/Huber, Grundgesetz, 7th ed. (2018), Art. 19 GG, para. 540 ff., footnotes have been removed, translation from German):

“Against this background, the increasing erosion of the suspensive effect through the Europeanization of administrative procedural law (…) does not lead to a conflict with the claim to validity of the legal protection guarantee of Art. 19 (4), even if it encourages the trend towards a reduction of the German level of legal protection.

The same principles apply to the European Patent Office in Munich, which was established on the basis of the Convention on the Grant of European Patents (EPC) concluded on 5 October 1973, and has the task of granting a ‘European bundle patent’ as an intergovernmental body within the meaning of Art. 24 (1) in a uniform granting procedure according to uniform requirements. Its decisions can be appealed (Art. 106 EPC), these appeals are decided by Boards of Appeal with judicial independence (Art. 23 EPC). Their proceedings are designed in a judicial way, their activities are materially judicial in nature.

The compatibility of this possibility of appeal with the minimum standard of effective legal protection required by the Grundgesetz (Art. 24 (1), 79 (3), 19 (2) and (4)) is not hindered by the fact that the Boards of Appeal are not courts institutionally separated from the European Patent Office (Art. 15 EPC). This is because, on the one hand, the demands for structural congruence between the German legal system and intergovernmental bodies within the scope of application of Art. 24(1) did not prevail, and, on the other hand, the minimum level of effective legal protection required by Art. 19 (2), which must not be fallen short of even in the case of supranationalization of jurisdictional functions, is marked less by the institutional separation of the second and third powers than by the possibility of having any infringement of rights reviewed by an appeal to an independent body in a judicial procedure. This minimum is guaranteed under the EPC.“

The relevance of these comments with regard to the prospects of success of the aforementioned constitutional complaint proceedings is left to the reader’s assessment.

The part which bothers us says: “Its decisions can be appealed (Art. 106 EPC), these appeals are decided by Boards of Appeal with judicial independence (Art. 23 EPC). Their proceedings are designed in a judicial way, their activities are materially judicial in nature.”

Is there no recognition at the FCC that the EPC has long been violated by the EPO? Or that judges at Boards of Appeal complain about their lack of judicial independence?

“Those quotes are not good news for us,” one Free software activist told us.

We mostly agree. It’s important to convey the simple fact that the Boards or tribunals of the EPO aren’t functioning and questions about their independence are being squashed. Contrary to what today’s “Kat” would wish for us to think…

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

This post is also available in Gemini over at:

gemini://gemini.techrights.org/2021/03/14/simulation-swpats-video/

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. How We Process and Upload Videos Hosted in Techrights

    With ffmpeg as the Swiss army knife (and various other utilities/programs ‘in between’) it’s possible to automate much of the pipeline associated with video production and self-hosting



  2. Richard Stallman's Free Software Speech in 2020 (FSF Turning 35)

    We've re-encoded (as WebM) the likely sole/only speech Richard Stallman gave about his movement last year; today seems like a suitable time to republish it because tomorrow a British university/group will replatform him (to use their term)



  3. The Chaos Theory

    Making GNU/Linux less stable and less predictable isn't good for GNU/Linux users; but it certainly helps sell Red Hat support contracts and vexation inside the community weakens Red Hat's competitors



  4. Gemini and Techrights: Still Growing in Gemini Space and Always Supporting/Loving the Protocol

    As we continue to expand in Gemini space (where our very large site became a very large and likely the largest capsule) it's worth explaining some of the overlooked merits of the protocol; unlike the World Wide Web (WWW) it does not impose things on the user/visitor, who is more or less in charge



  5. Links 9/5/2021: KDE Frameworks 5.82.0 Release and Patents Related to COVID Subjected to Waivers

    Links for the day



  6. Act More 'Professional' to Appease Mobs

    We should all think alike, dress alike, and like everybody (especially the business overlords)



  7. IRC Proceedings: Saturday, May 08, 2021

    IRC logs for Saturday, May 08, 2021



  8. Some Background on the Free Speech Society at the University of Buckingham, Where Richard Stallman is Being 'Replatformed'

    A private British university, the University of Buckingham, will 'host' (virtually) the most-defamed person in the Free software world; the Free Speech Society is only two years old and rationality for its existence is explained by its co-founder James Oliver



  9. Web Sites or News Sites Perish When Their Arguments Are Weak and/or Invalid

    "Just be honest!" is a simple motto for any site; but some sites sell out in pursuit of money or grandiosity, unlike us (we turned 14.5 years old on Friday)



  10. GNU/Linux Turns 38 (in 4 Months From Now)

    Contrary to what the Linux Foundation wants you to think, the operating system turns 38 later this year



  11. Richard Stallman: Steve Jobs Did Some Very Bad Things

    Dr. Richard Stallman told me about Steve Jobs that he had helped digitally imprison computer users



  12. GNU/Linux Founder Richard Stallman to Give a Talk at the University of Buckingham Tomorrow (Live Stream)

    Tomorrow it will be possible to watch this new talk live using Free software



  13. Then We Take Berlin...

    Homage to EPO, based in Munich and Berlin (and defended by the government in Berlin)



  14. The Right to Assemble, Fundamental Rights of Ownership, and Many Other Rights Are Under Attack

    Techrights will be dealing a lot more with erosion of what people have come to assume were “rights” (real rights, such as human rights, labour rights, not copy “rights” or patent “rights”); when rights are reduced to rubble the long-term consequences are severe, shows history



  15. TechBytes Episode 91: End of Privacy and End of Windows 10X

    Tim and Roy produce their 2nd audiocast since TechBytes returned



  16. The Cancel Song

    People who work for (or receive funding from) Nazi-associated IBM are still trying to turn the work/legacy of Richard Stallman (RMS) into dust/ashes



  17. Pro-Software Freedom Advocates and Free/Libre Software Supporters Face Barriers Due to Domination of Communication Channels (Beyond the Media)

    A carefully-checked assessment of an overlooked aspect surrounding the 'cancel mob', which incites and brainwashes people based on lies; there's an attempt to control channels of communication (e.g. Open and Free Technology Community and Freenode) and to generally suppress people who support the founder of GNU/Linux



  18. Bashing Free Software and GNU/Linux is a Terrible Business Model for Publishers

    Contrary to unflattering portrayals by hostile media that's sponsored by foes of Free software, the usage of Free software grows, even if things such as DRM and surveillance stand in the way of software freedom (which was wrongly assumed to be ushered in by Free software, irrespective of malicious features like 'telemetry')



  19. Links 8/5/2021: GIMP 2.99.6, Wine 6.8 Released

    Links for the day



  20. IRC Proceedings: Friday, May 07, 2021

    IRC logs for Friday, May 07, 2021



  21. [Meme] Outsourcing Audacity Development to Microsoft Proprietary Software and Then Copying Microsoft Tactics (and 'Telemetry')

    They've had the audacity to call it "telemetry" and pretend that surveillance companies (spying giants) cannot figure out who you are based on IP addresses



  22. Links 7/5/2021: IPFire 2.25 Core Update 156 and Diffoscope 174 Released

    Links for the day



  23. The New Microsoft? No, the New IBM.

    Microsoft GitHub and IBM: a strategic alliance between a monopolistic duo



  24. The Audacity Takeover by Muse Group is No Cause for Celebration

    Audacity is now part of an entity called Muse Group and if it doesn’t take or suck freedom out of Audacity, it will certainly deny users rather basic concepts (or anticipation) of privacy



  25. King of Linux

    If the entire operating system is being called "Linux", then we fall for a publicity or misattribution stunt



  26. The Biggest Troll is the Linux Foundation, Still Looking to Provoke and Defame Free Software Communities in Order to Help a Monopolistic Takeover and to Shoehorn Tyrants Into Leadership Positions

    Contrary to what the so-called ‘Linux’ Foundation is trying to say, the most toxic element is itself; it’s maligning the real community while protecting abusive and racist corporations that profit from war and tribalism-motivated hatred



  27. IRC Proceedings: Thursday, May 06, 2021

    IRC logs for Thursday, May 06, 2021



  28. “The Lolita Express” and Prince Bill

    “The Lolita Express” scandals return to haunt pool old Bill, as it turns out his wife was upset and it's quite likely the reason for their divorce



  29. Links 7/5/2021: GNU/Linux Preinstalled, Plamo 7.3, LibreOffice 7.1.3

    Links for the day



  30. The Latest Reports About Bill Gates Serve to Confirm or at Least Reaffirm Many People's Suspicions

    So, just as many people suspected, Melinda Gates did not appreciate her husband sneaking behind her back to meet someone who had trafficked thousands of underage girls for sexual exploitation and there are high-profile calls right now for greater transparency, seeing the impact on the world’s biggest tax evasion vehicle


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts