07.17.21

The EPO’s Enlarged Board of Appeal Acknowledges That It’s Rigged Even After a Shuffle

Posted in Courtroom, Deception, Europe, Law, Patents at 4:40 pm by Dr. Roy Schestowitz

Video download link | md5sum 285911316fb6b32f5b7f2da3cb8998fe

Summary: The Enlarged Board of Appeal (EBA/EBoA) does what the Office basically rigged it to do; it’s approving unlawful measures

IT recently became a lot more apparent that the tribunals at the EPO had been rigged, first by Benoît Battistelli and then again by António Campinos. Time after time, especially when it comes to very big questions, the Enlarged Board of Appeal would rule in favour of the Office, irrespective of the underlying facts. Yet worse, they’d deal with legitimate concerns and arguments by setting them aside as inadmissible or something along those lines.

On Friday, i.e. yesterday, the Enlarged Board of Appeal did that yet again, just as we expected. The video above deals with so-called ‘media’ (in the pockets of litigation firm) coverage from that day. We’ll probably deal with this topic again some time in the near future.

07.08.21

ILOAT Finally Overturns Battistelli’s Vichyite Strike Regulations

Posted in Courtroom, Europe, Law, Patents at 1:31 pm by Dr. Roy Schestowitz

ILO screenshot
The Judgments of the ILOAT’s 132nd Session were announced in Geneva on 7 July 2021

Summary: An explanation of the blow suffered by António Campinos and the person who gave him the job; ILOAT (or ILO-AT) belatedly — or eight years late! — assessed Battistelli’s Vichyite strike regulations

There was some good news for EPO staff from Geneva on Wednesday when the Administrative Tribunal of the ILO announced its judgments from the recent 132nd Session, held between 24 May and 28 June 2021.

A significant number of the judgments related to Benoît Battistelli‘s notorious “Strike Regulations” which were adopted eight years ago in June 2013.

“But despite such clearly expressed reservations, the Administrative Council turned a blind eye to the palpable defects in the proposals tabled by Team Battistelli and – like a bunch of headless chickens – voted to adopt these manifestly flawed measures whose illegality has now been exposed for all to see.”On 27 June 2013, following a proposal by the President of the Office [PDF], the Administrative Council adopted decision CA/D 5/13 [PDF] amending the EPO Service Regulations (which entered into force on 1 July 2013).

Amongst other things, CA/D 5/13 created a new Article 30a of the Service Regulations concerning the right to strike.

Article 30a sets out some basic rules concerning strikes, defining what is meant by a “strike” and indicating, amongst other things, that a call for a strike can be initiated by a staff committee, an association of employees, or a group of employees, and that the decision to start a strike must be the result of a vote by the employees. Paragraph 10 of Article 30a authorises the President of the Office to lay down further terms and conditions for the application of Article 30a.

Relying on that provision, on 28 June 2013 the former Vice-President of DG4, Mr Željko Topić – acting on behalf of the President – issued Circular No. 347 containing “Guidelines applicable in the event of strike”, which likewise entered into effect on 1 July 2013.

At the time of their adoption in 2013, Battistelli’s Strike Regulations were strongly criticised by EPO staff representatives and the staff union SUEPO. This criticism was shared by outside observers of the social conflict at the EPO which was being escalated to new heights by Battistelli’s authoritarian management style à la France Telecom.

An article entitled “The President Repeals A Fundamental Right?” authored by Sylvie Jacobs, the Chairperson of the EU staff union, Union Syndicale Fédérale, which appeared in the January 2014 issue of the USF Newsletter [PDF], Agora, described Battistelli’s régime at the EPO in the following terms:

“EPO President Battistelli’s HR policy reveals a serious lack of understanding of fundamental rights of workers, in particular their right of association in the form of a trade-union.”

Later that year, in November 2014 [PDF], a position paper issued by the staff union SUEPO entitled “Social Conflict at the European Patent Office” noted that “such measures are unprecedented in Europe, apart from Italy’s Carta del Lavoro (B. Mussolini, 1927) and Spain’s Fuero del Trabajo (F. Franco, 1938).”

In drawing comparisons between Battistelli’s oppressive Strike Regulations and those of fascist-corporatist régimes that flourished in Europe during the inter-war period of the 20th century, SUEPO forgot to mention the example which was probably closest to Battistelli’s heart: the Labour Code or “Charte du Travail” adopted in 1941 by Philippe Pétain‘s Vichy State. The repressive labour and social policies of Pétain’s État Français were closely modelled on those of Fascist Italy.

Vichy Battistelli
Did Maréchal Pétain’s Vichy State provide the role model for Battistelli’s repressive regime at the EPO?

With Judgment no. 4430 [PDF], the ILOAT delivered on 7 July 2021, the ILOAT belatedly hammered another long overdue nail into the coffin of “le Système Battistelli” at the EPO, by striking down Circular No. 347 as manifestly unlawful.

This long-awaited judgment is good news for all those who opposed the tyrannical regime of Team Battistelli over the last decade.

While this significant legal victory is a cause for celebration, it should not be allowed to obscure the precarious legal situation of the staff of the EPO and other international organisations who are dependent on Tribunals like the ILOAT to defend their rights.

Notwithstanding the fact that Circular No. 347 has been found to breach the fundamental rights of EPO staff, it remained in force for eight years!

During this time it was used repeatedly to underpin the Corsican despot’s managerialist “Reign of Terror” and impede any kind of internal dissent and collective action on the part of EPO staff against the excesses of the Office Administration.

Even more outrageous is the fact that at the time of the adoption of the Strike Regulations in 2013, the small number of delegations on the Administrative Council that made any attempt to evaluate the proposed measures had grave doubts about their compliance with international conventions.

An internal memorandum from the Norwegian Department of Labour dated 26 June 2013 [PDF] expressed the following opinion:

“The Department of Labour is therefore skeptical about a solution with an administrative regulation and about the content that, at a quick glance, seems extremely dubious in respect of its compliance with applicable international conventions.”

But despite such clearly expressed reservations, the Administrative Council turned a blind eye to the palpable defects in the proposals tabled by Team Battistelli and – like a bunch of headless chickens – voted to adopt these manifestly flawed measures whose illegality has now been exposed for all to see.

Will any lessons be learned from this débâcle?

One would like to think so, but unfortunately the track record of the Administrative Council and the senior management of the Office over the last decade doesn’t provide much reason for optimism on this front.

[Meme] Will EPO Comply?

Posted in Courtroom, Europe, Law, Patents at 8:02 am by Dr. Roy Schestowitz

Dynamic interpretation!
Compliance or fixing?

Summary: EPO management has lost a number of important cases at ILO-AT (regarding its attacks on over 1,000 members of staff and unlawful regulations); will it comply with the rulings?

07.07.21

Among 43 New Judgments From ILO-AT, Which ‘Oversees’ Dozens of Institutions, 25 (More Than 58%) Concern the EPO’s Staff

Posted in Courtroom, Europe, Patents at 6:43 pm by Dr. Roy Schestowitz

Imagine just one institution taking up almost two-thirds of the limited resources of ILO’s Administrative Tribunal

ILO Administrative Tribunal membership

Summary: The Staff Union of the EPO (SUEPO) shows the chaotic effect of a truly dysfunctional and corrupt Office management; ILO’s Administrative Tribunal (ILO-AT) can barely keep up with the caseload

MANY people no longer remember this. In the final days of Benoît Battistelli as EPO President he was served a blow by ILO-AT, which belatedly and exceptionally ruled in favour of his scapegoats, the SUEPO leaders (representatives). They were vindicated, but a lot of personal and collective harm had been done.

The EPO will never forget and may never recover from this.

“The AC (Administrative Council) has become deeply complicit, as we’ve repeatedly demonstrated in recent days.”Earlier today (this morning) we wrote about how IP Kat finally wrote about Friday’s controversial hearing less than a day earlier. We mentioned that many blog comments would not show up. Some did. “The founding fathers of the EPO are spluttering in their cocoa or turning in their graves. Sad days,” said one commenter. There was also this one:

Contrary to the view of the President’s representative, a “dynamic” interpretation based upon secondary legislation is NOT possible in this instance.

The competence of the AC to amend Articles of the EPC is limited (by Article 33(1)(b) EPC) to amendments that are for the purpose of bringing the EPC “into line with an international treaty relating to patents or European Community legislation relating to
patents”. This criterion is NOT satisfied with respect to Article 116 EPC.

Perhaps the President’s representative is aware of a really obscure international treaty (or piece of EU legislation) which relates to patents AND which specifies that oral proceedings can be conducted by VICO without the consent of parties to the proceedings. However, given that they did not mention any such treaty (or legislation), then I can only assume that they instead believe that Article 33(1)(b) EPC can also be interpreted “dynamically” (ie in whichever way happens to suit the current plans of the EPO President).

The sentiments are very negative. These are legal professionals, either active or retired. They’re not happy.

Staff of the EPO isn’t happy either. Far from it. There are still many complaints about EPO management. In fact, copies of new key decisions can be found in SUEPO’s Web site [1 [PDF], 2 [PDF], 3 [PDF],4 [PDF], 5 [PDF]] or the originals in ILO’s Web site, which is trustworthy only for long-term preservation (not for access to justice, as history shows). We’re not making local copies or videos, as explaining the full text would be hard (much studying required and the union is already doing that anyway, probably in cooperation with the aggrieved staff who would know the cases best). Here are the first pages (of each in turn):

ILOAT on #4430

ILOAT on #4432
ILOAT on #4433

ILOAT on #4434

ILOAT on #4435

Two of these concern the notorious strike deductions [1, 2, 3]. They concern many members of staff. The other three concern Circular 347.

In its public post about this SUEPO notes (revised for a slight error earlier today or just to add a case mistakenly omitted earlier today): “In its 132nd session the Tribunal delivered a total of 43 judgments, of which 25 concern the EPO (many of which were in favor of the complainants). [...] A detailed analysis of the most significant cases involving the EPO will be published at a later date.”

SUEPO focuses on the positive outcomes in isolation. This is normal. “The encouraging news from this session is that the following cases were ruled in favor of the complainants [i.e. the staff],” but we can assume the rest involved lots of legal fees (burden on staff) without a positive outcome. We already know that António Campinos is lawyering up the staff, wasting EPO budget to basically attack EPO staff a second time around (first in the Office, then in the tribunals). He clearly does not seek peace and reconciliation. To quote a new comment from IP Kat: “Had the present and the previous management team been at the helm of the EPO at its beginning, the EPO would never have become what it is was before 2010. It is sad to see those pseudo managers, by no means leaders, driving the EPO into the wall merely to satisfy their desire for power. The AC has completely given up its control function, it is as has been the said the tail wagging the dog.”

Yes, exactly! The AC (Administrative Council) has become deeply complicit, as we’ve repeatedly demonstrated in recent days.

06.21.21

Virtual Injustice — Part 14: How Mandatory ViCo Became the “New Normal”

Posted in Courtroom, Europe, Law, Patents at 4:40 pm by Dr. Roy Schestowitz

Previously in the series:

  1. Virtual Injustice — Part 1: António’s Increasingly Wonky Legal Fudge Factory
  2. Virtual Injustice — Part 2: The ViCo Oral Proceedings of 28 May 2021
  3. Virtual Injustice — Part 3: All the President’s Men…
  4. Virtual Injustice — Part 4: Mihály Ficsor, the EPO’s Hungarian “Fixer”
  5. Virtual Injustice — Part 5: Benoît’s “Friends” in Budapest
  6. Virtual Injustice — Part 6: Best Buddies With António
  7. Virtual Injustice — Part 7: Musical Chairs and Revolving Doors
  8. Virtual Injustice — Part 8: A Well-Connected ‘IP’ Maximalist
  9. Virtual Injustice — Part 9: Heli, the EPO’s Nordic Ice-Queen
  10. Virtual Injustice — Part 10: Vapid and Superficial Coverage in the ‘IP’ Blogosphere
  11. Virtual Injustice — Part 11: Perceptive Comments and Caustic Criticism
  12. Virtual Injustice — Part 12: Carl Josefsson – Down But Not Out!
  13. Virtual Injustice — Part 13: Let the Games Continue…

ViCo hearings/Big Brother

Summary: How mandatory ViCo hearings gradually became the "New Normal" at the EPO. The lawlessness of the EPO has gone offline and online; António Campinos takes up a notch the abuses of Benoît Battistelli, with a COVID ‘shot in the arm’.

The impetuous manner in which the President of the Boards of Appeal, Carl Josefsson, tried to steer the referral procedure G 1/21 towards a pre-cooked “foregone conclusion” is quite remarkable given that – as we shall see below – the Boards were initially quite hesitant about the use of videoconferencing for conducting oral proceedings at the start of Covid pandemic.

“It is worth recalling here that the possibility to use ViCo has in fact been available at the EPO since January 1998.”The reason for this initial hesitancy on the part of the Boards is not hard to find.

Prior to the onset of the Covid pandemic in 2020, it had been the long-established position of the EPO that hearings by ViCo were not equivalent to the traditional form of “in person” oral proceedings held on the EPO premises.

It is worth recalling here that the possibility to use ViCo has in fact been available at the EPO since January 1998. [PDF]

OJ 1997 OP held as video conference

Furthermore, when the EPO introduced this option, it was restricted to examination proceedings which are non-public ex parte proceedings involving only a single party.

In order to exercise this option, the EPO required the applicant to “renounce in advance and irrevocably his right to oral proceedings being held in the traditional form at the EPO premises on the same subject after the requested video conference.”

In other words, applicants were offered the possibility of a hearing by ViCo as an optional alternative in lieu of their statutory right to an oral hearing in person on the premises of the EPO.

“Furthermore, when the EPO introduced this option, it was restricted to examination proceedings which are non-public ex parte proceedings involving only a single party.”In the case of proceedings before opposition divisions – which are public adversarial inter partes proceedings involving two or more parties – no provision was made for oral proceedings by ViCo.

Back in 2011, the committee in charge of the European Qualifying Examination (EQE) confirmed [PDF] in its annual examination report that “there is no legal provision allowing video conference before an opposition division (see here, footnote [28]).

Similarly, in the case of judicial proceedings before the Boards of Appeal – whether ex parte (examination) or inter partes (opposition) – no option for oral proceedings by ViCo was ever provided prior to 2020.

2011 paper C exrep en page 2

“The Covid pandemic turned out to be a game-changer in this regard.”In short, there was a long-established consensus in the EPO’s legal department that oral proceedings by ViCo were not appropriate for public proceedings having a judicial or quasi-judicial character, such as adversarial proceedings before opposition divisions and appeal proceedings before the Boards of Appeal.

The Covid pandemic turned out to be a game-changer in this regard.

On 1 April 2020, the President of the EPO issued a decision ordering – as opposed to offering – oral proceedings by ViCo in the case of ex parte examination cases.

Article 1(1) of this decision stated in mandatory terms that “Oral proceedings before examining divisions are to be held by videoconference”.

Article 1(3) further decreed that “Oral proceedings by videoconference are equivalent to oral proceedings held on the premises of the European Patent Office”.

Soon afterwards, on 14 April 2020, the President announced [PDF] a “pilot project” for oral proceedings by ViCo in the case of inter partes opposition cases.

ViCo OPPO 14 April 2020

“The earlier proviso referring to the “the agreement of all parties” had mysteriously vanished without explanation from the text of the new decision.”The initial scope of the “pilot project” was restricted to “all oral proceedings before opposition divisions that are scheduled to take place after the entry into force of the present decision” and the project was limited in duration (“until 30 April 2021″).

And – most importantly – Article 2(1) of the decision made the holding of opposition hearings by ViCo contingent on “the agreement of all parties”.

On 10 November 2020 a further decision [PDF] concerning “the modification and extension” of the “pilot project” announced that the project had been “extended to run until 15 September 2021″.

ViCo OPPO 10 November 2020

“It is worth noting here that these “decisions” of the EPO imposing oral proceedings by ViCo without the consent of the parties – for both examination and opposition procedures – are unilateral acts of the Office President which did not involve any prior consultation or approval of the Administrative Council.”Article 1(1) of the decision of 10 November 2020 now prescribed in mandatory terms that “Oral proceedings before opposition divisions are held by videoconference”.

The earlier proviso referring to the “the agreement of all parties” had mysteriously vanished without explanation from the text of the new decision.

It is worth noting here that these “decisions” of the EPO imposing oral proceedings by ViCo without the consent of the parties – for both examination and opposition procedures – are unilateral acts of the Office President which did not involve any prior consultation or approval of the Administrative Council.

Meanwhile, in the municipality of Haar – located “only slightly” outside the boundaries of the city of Munich – the EPO’s nominally independent judicial organ, the Boards of Appeal, initially followed its own more cautious and conservative approach.

On 15 March 2020 (warning: epo.org link) the Boards announced that due to “the pandemic spread of the novel Coronavirus (COVID-19)”, they had been “forced to restrict [their] judicial activities” and that oral proceedings would not be held on the premises of the Boards of Appeal from 16 March 2020 until 27 March 2020.

On 20 March 2020, it was announced that this temporary moratorium would be extended until 17 April 2020. On 1 April, it was further extended until 30 April and on 17 April it was extended once more until 15 May.

Finally, on 15 May 2020 [PDF], it was announced that the Boards would “resume the holding of oral proceedings, to a limited extent, at their premises in Haar from Monday, 18 May 2020″.

BoA ViCo 15 May 2020

In addition to this, it was noted that:

“Video-conferencing technology (VICO) is now available for the conduct of oral proceedings before the Boards of Appeal. Oral proceedings will be conducted by VICO only in agreement with the parties concerned, who will be sent an advance communication in this regard. Oral proceedings to be conducted by VICO will be listed in the oral proceedings calendar.”

Thus, during 2020 ViCo hearings before the Boards of Appeal were held only with the consent of all parties to the proceedings.

However, in December 2020 things began to change dramatically as the President of the Boards of Appeal, Carl Josefsson, embarked on an initiative to align the practice of the Boards with that of the Office.

More precisely, in December 2020, Josefsson requested the Boards of Appeal Committee to add a new Article 15a to the Rules of Procedure of the Boards of Appeal (RPBA).

This new procedural rule – which was of unlimited duration and entirely decoupled from any emergency situation such as a pandemic – foresaw that the Boards of Appeal would now be empowered to conduct oral proceedings under Article 116 EPC by ViCo without the consent of the parties.

On 15 December 2020 [1, 2] [PDF], a communication entitled “Oral proceedings before the Boards of Appeal – continuation of the measures adopted due to the coronavirus (COVID-19) pandemic and revised practice on oral proceedings by VICO” appeared on the EPO’s website (warning: epo.org link) announcing that:

“From 1 January 2021 boards may conduct oral proceedings by VICO even without the agreement of the parties concerned, as has now been made clear in the new Article 15a RPBA adopted by the Boards of Appeal Committee.”

“In addition to this, the communication misleadingly claimed that “the new provision merely clarifies an existing possibility” which was most certainly not the case.”What is noteworthy about this announcement is that it was made over three months prior to the formal approval of the new procedural rule by the Administrative Council – on 23 March 2021 – and its entry into force a week later on 1 April 2021.

In addition to this, the communication misleadingly claimed that “the new provision merely clarifies an existing possibility” which was most certainly not the case.

Before long, in February 2021, a Technical Board of Appeal decided to refer a question about the lawfulness of the new rule to the Enlarged Board of Appeal because they could not find a satisfactory legal basis for it in the EPC.

The Enlarged Board was tasked with answering the following question:

Is the conduct of oral proceedings in the form of a videoconference compatible with the right to oral proceedings as enshrined in Article 116(1) EPC if not all of the parties to the proceedings have given their consent to the conduct of oral proceedings in the form of a videoconference?

The Enlarged Board opened the referral case as G 1/21 and – under the chairmanship of Carl Josefsson – immediately summoned to oral proceedings on 28 May 2021 – a mere 2 months later.

At the same time, Josefsson issued a note informing the parties that “a decision on the points of law could be promptly issued” if they would agree to waive their rights to the oral proceedings.

Administrative Council Art. 15a RPBA
The Administrative Council rubber-stamped Art. 15a RPBA on 23 March 2021 despite a pending referral.

Although the legitimacy of the new rule had been called into question and the referral G 1/21 was pending, the Administrative Council nevertheless proceeded to rubber-stamp Article 15a RPBA on 23 March 2021 [PDF] and it officially entered into force on 1 April 2021 [PDF].

AC Rule 15b RPBA 23 March 2021

ViCo OP EXAM 1 April 2020

Meanwhile, in a parallel action, the Office Administration published [PDF] a “Notice from the European Patent Office dated 24 March 2021 concerning the conduct of oral proceedings in examination and opposition in view of referral G 1/21″ on the EPO’s official website.

EPO ViCo EXAM OPPO 24 March 2021

“The Notice of 24 March 2021 from the President was quite remarkable because, normally, when a referral is pending before the Enlarged Board of Appeal, proceedings before examination and opposition divisions which may be affected by the outcome of the referral are stayed.”In this “Notice”, the President of the Office announced that – in response to the pending referral – he had decided that “oral proceedings before examining and opposition divisions will continue to be held by videoconference in accordance with the applicable decision of the President of the EPO, i.e. without requiring the agreement of the parties”.

The President attempted to justify his decision with the self-serving claim that it had been made “in order to guarantee access to justice and ensure the functioning of the EPO”.

The Notice of 24 March 2021 from the President was quite remarkable because, normally, when a referral is pending before the Enlarged Board of Appeal, proceedings before examination and opposition divisions which may be affected by the outcome of the referral are stayed.

“As long as Josefsson was steering the procedure in G 1/21, there was never any indication of the possibility that the Enlarged Board might arrive at a different conclusion to that desired by the EPO’s senior management.”In this particular case, thanks to the “expeditious” schedule imposed upon the Enlarged Board by Josefsson, it would only have been necessary to wait two months for a final ruling in order to have legal certainty as to whether or not decisions taken in the course of mandatory ViCos could be considered valid.

In retrospect, the communication of 15 December 2020 appears to have been intended to proclaim a fait accompli.

As long as Josefsson was steering the procedure in G 1/21, there was never any indication of the possibility that the Enlarged Board might arrive at a different conclusion to that desired by the EPO’s senior management.

Indeed, the breakneck speed with which Josefsson had issued a summons to oral proceedings [PDF] together with the Administrative Council’s approval of the new Article 15a RPBA on 23 March 2021 and the Notice of 24 March from the Office President, gave the distinct impression that the outcome of the referral procedure was already a “done deal”.

EPO ViCo EXAM OPPO 24 March 2021

“In particular, the manner in which the referral procedure was conducted under Josefsson’s chairmanship seemed deliberately calculated to signal to the Office Administration and the Council that the Enlarged Board could be counted on to deliver a rubber-stamped approval of the new procedural rule in as “timely” a manner as possible.”To seasoned observers of the EPO, there were clear indications of a closely coordinated and carefully orchestrated “joint enterprise”.

In particular, the manner in which the referral procedure was conducted under Josefsson’s chairmanship seemed deliberately calculated to signal to the Office Administration and the Council that the Enlarged Board could be counted on to deliver a rubber-stamped approval of the new procedural rule in as “timely” a manner as possible.

“In the concluding part of this series we will attempt to provide some answers to those questions and to cast some light on the “hidden agenda” which Campinos and his “buddies” appear to be pursuing in connection with G 1/21.”The only open questions here are why has the Office President (Campinos) been so keen to obtain a rapid rubber-stamping of the new Article 15a RPBA by the Enlarged Board and how was he able to secure the unquestioning complicity of the President of the Boards of Appeal (Josefsson) in this affair?

In the concluding part of this series we will attempt to provide some answers to those questions and to cast some light on the “hidden agenda” which Campinos and his "buddies" appear to be pursuing in connection with G 1/21.

06.19.21

The EPO’s Enlarged Board of Appeal Has Already Lost the Case in the Court of Public Opinion

Posted in Courtroom, Europe, Law, Patents at 6:46 pm by Dr. Roy Schestowitz

Video download link

Summary: Personal views on the sordid state of the Enlarged Board of Appeal (EBoA), which by extension bodes poorly for the perception of independence in every Board of Appeal (BoA); the patent tribunals have been captured by patent maximalists who either stack the panels or intimidate judges into ruling in a particular way

THE above video concerns the latest part in the series about Carl Josefsson and the EBA (or EBoA) judges, who sway at the whim of EPO President António Campinos with his EUIPO ‘imports’, who moreover implicate the EU. The reputation of Europe’s two largest institutions is at stake here.

“Should we tolerate kangaroo courts?”What’s at stake here isn’t just patent law or just the EPO; this is about Europe and about courts in general. Is it acceptable that in ‘civilised’ Europe we can have stacked courts deciding on important issues while obsessing over appearance (“perception”) rather than substance? Should we tolerate kangaroo courts?

Virtual Injustice — Part 12: Carl Josefsson – Down But Not Out!

Posted in Courtroom, Europe, Law, Patents at 5:55 pm by Dr. Roy Schestowitz

Previously in the series:

  1. Virtual Injustice — Part 1: António’s Increasingly Wonky Legal Fudge Factory
  2. Virtual Injustice — Part 2: The ViCo Oral Proceedings of 28 May 2021
  3. Virtual Injustice — Part 3: All the President’s Men…
  4. Virtual Injustice — Part 4: Mihály Ficsor, the EPO’s Hungarian “Fixer”
  5. Virtual Injustice — Part 5: Benoît’s “Friends” in Budapest
  6. Virtual Injustice — Part 6: Best Buddies With António
  7. Virtual Injustice — Part 7: Musical Chairs and Revolving Doors
  8. Virtual Injustice — Part 8: A Well-Connected ‘IP’ Maximalist
  9. Virtual Injustice — Part 9: Heli, the EPO’s Nordic Ice-Queen
  10. Virtual Injustice — Part 10: Vapid and Superficial Coverage in the ‘IP’ Blogosphere
  11. Virtual Injustice — Part 11: Perceptive Comments and Caustic Criticism

Josefsson and Boards of Appeal
Something seems to be out of balance at the Boards of Appeal. Now what could that be?

Summary: António Campinos still controls Josefsson, who controls all the judges, so in effect all the legal cases (including some about European software patents) are manipulated by the Office the judges are supposed to judge

One of the main protagonists in the legal shenanigans which have bedevilled case no. G 1/21 is the President of the Boards of Appeal, Carl “Calle” Josefsson, who appears to have become a casualty of his own hubris.

Josefsson’s role in the case was characterised by the arrogance and “hauteur” typical of the EPOnian senior managerial caste.

“His conduct was so outrageously out of order that it attracted a significant amount of public criticism.”He insisted on taking charge of the proceedings and chairing the panel despite his obvious conflict of interest in the matter.

His conduct was so outrageously out of order that it attracted a significant amount of public criticism.

Partiality objections against Josefsson and other members of the originally appointed panel were raised in numerous “third party observations” [PDF] submitted to the Enlarged Board and in written submissions filed by the appellant on 27 April 2021. [PDF]

On 17 May, the Enlarged Board held an intermediate or “interlocutory” session to consider the objections which had been raised by the appellant.

The outcome of this interlocutory session was that Josefsson was deposed as chairman of the panel. One other member of the panel – Ingo Beckedorf – was also obliged to step down after he had admitted to the Enlarged Board that he had been personally involved in the drafting of the disputed provision concerning mandatory ViCo hearings.

At this point, one might be tempted to conclude that order had been restored and that there was nothing to worry about now.

“In reality, the removal of Josefsson from the proceedings has not solved the manifold problems which have dogged this procedure from the outset.”After all, Josefsson had been replaced as chairman of the panel. Didn’t this mean that he was safely sidelined from exerting any further influence over the proceedings? Where’s the problem?

It’s understandable that an uninformed observer might be tempted to draw such conclusions. However a closer study of the facts suggests that such optimism would be seriously misplaced.

In reality, the removal of Josefsson from the proceedings has not solved the manifold problems which have dogged this procedure from the outset.

By 17 May it was plain to all and sundry – including the other members of the Enlarged Board – that Josefsson’s replacement had become necessary to avoid a complete meltdown of public confidence in the Boards of Appeal and the EPO in general.

However, on its own this corrective measure cannot be considered sufficient to remedy the further flaws in the procedure or to restore public confidence in the manner in which the Enlarged Board is dealing with the case.

To begin with, it seems that the Enlarged Board’s interlocutory session of 17 May took place in the absence of the parties.

As noted by the pseudonymous poster “The fall of the EBA” in a comment on IPKat, the exclusion of the parties from this session seems to be a serious procedural violation:

Partiality might be discussed in a non-open OP before the EBA, but the first decision in which the chair of the BA [Josefsson] and his faithful servant [Beckedorf] were removed by their peers, was taken without the parties. This is a scandal on its own as even the discussion on partiality should be of contradictory [i.e. adversarial] nature.

The poster went on to criticise the refusal of the Enlarged Board to grant the appellant’s request for the disclosure of the statements which Ritzka and Eliasson had made in response to the objections against them, describing this as “a further scandal”:

The parties have the right to know why the members accused of partiality consider themselves this is not the case.

During the oral proceedings on 28 May, the Enlarged Board dismissed a further objection that the replacement members – namely, the new chairman Blumer (replacing Josefsson), and the new legal member Bokor (replacing Beckedorf) – had not been appointed in accordance with the applicable procedural rules for replacement.

On the basis of the currently available information, it would appear that the Enlarged Board simply chose not to admit these objections on some legal technicality so that it could avoid having to enter into an examination on the substance of the objections.

All in all, there is a perception among external observers that a question mark – or rather a series of question marks – remain hanging over the legality of the panel in its current composition.

Ritzka, Eliasson and van der Eijk
There seems to be a general consensus that partiality objections relating to Ritzka, Eliasson and van der Eijk have not been dealt with in a satisfactory manner.

In particular, there seems to be a general consensus that the partiality objections relating to certain members of the original panel – namely, Ritzka, Eliasson and van der EIjk – have not been dealt with in a satisfactory manner.

Blumer-and-Bokor
Were the replacement members, Blumer and Bokor appointed in accordance with the applicable procedural rules?

In addition to this, there are unresolved doubts about the legitimacy of the selection of Blumer and Bokor as the respective replacements for Josefsson and Beckedorf.

Aside from these well-founded concerns about the composition of the panel, observers have also pointed to another serious blunder committed by the Enlarged Board on 17 May when – claiming to be acting in the interests of “timeliness” – it stubbornly refused to contemplate any change to the original precipitous schedule which Josefsson had imposed on the proceedings in an attempt to rubber-stamp his own decision as quickly as possible.

“Had the Enlarged Board rescheduled the proceedings – as it should have done – that would not only have given the newly composed panel sufficient time to take proper stock of the case and have provided the appellant with an adequate opportunity to exercise its right to be heard.”If the Enlarged Board had been acting in a truly independent manner free from subtle and hidden political pressures, it is clear that the only sensible course of action, following the interlocutory decision of 17 May and the sidelining of Josefsson, would have been to cancel the oral proceedings of 28 May and to re-appoint new oral proceedings at a later date.

Had the Enlarged Board rescheduled the proceedings – as it should have done – that would not only have given the newly composed panel sufficient time to take proper stock of the case and have provided the appellant with an adequate opportunity to exercise its right to be heard.

It would also have sent a clear signal that the newly composed panel wished to distance itself from Josefsson’s scandalous conduct during the initial phase of the procedure and his cynically manipulative prioritisation of “speed” over “diligence”.

It deserves to be pointed out that Josefsson had openly and brazenly acted in a manner which was in direct contradiction to a fundamental tenet of judicial conduct, "Nemo judex in causa sua".

This tenet is expressed in the following terms under item 9.2 of the Burgh House Principles:

“Judges shall not serve in a case with the subject-matter of which they have had any other form of association that may affect or may reasonably appear to affect their independence or impartiality”.

On IPKat the pseudonymous “Proof of the pudding” commented as follows:

We can conclude that the President of the BoA must have overlooked this principle when (originally) deciding to serve in case G 1/21.

Frankly, it is hard to see how even the appearance of impartiality can now be restored in view of the fact that the EBA has not (completely) rescinded the decisions taken by the President of the BoA in G 1/21.

The failure of the Enlarged Board to draw a line in the sand and to distance itself in a clear and unambiguous manner from Josefsson’s previous judicial misconduct means that, no matter what happens after his removal, the procedure remains tainted by his initial influence on it.

It also gives rise to a suspicion that Josefsson’s removal from the procedure may have been agreed upon solely for the sake of “optics”.

In other words, it is quite possible that his removal was nothing more than a tactical manoeuvre designed to mislead the public into believing that the Enlarged Board was prepared to deal with the case in a genuinely impartial and diligent manner.

Last but not least, there is the “elephant in the room” alluded to by a number of commentators on the IPKat blog, namely the gaping governance deficits arising from Benoît Battistelli‘s Boards of Appeal “reform” of 2016.

The events surrounding G 1/21 have exposed the deficiencies in this “reform” in practice and make it clear that the “reform” has diminished rather than enhanced the independence of the Boards.

As the poster “The fall of the EBA” put it in one of his comments on IPKat:

The whole way G 1/21 has been managed by the chair of the EBA shows amply that the BA [Board of Appeal] are anything but independent.

On top of it, the chair of the BA [Josefsson] only has the powers delegated to him by the president of the EPO.

There is not even the perception of the independence!

The essential point to be noted here is that, although Josefsson has been formally removed from the panel dealing with G 1/21, the Chief Oompa Loompa of the EPO’s legal fudge factory still rules the roost in Haar by virtue of Rule 12d(3) EPC. (warning: epo.org link)

Chief-Oompa-Loompa-Josefsson
Chief Oompa Loompa Josefsson still rules the roost in Haar thanks to Rule 12d(3) EPC.

As explained in the postscriptum to the last series, Rule 12d(3) EPC – which is a key component of Battistelli’s 2016 “reform” – makes all internal members of the Enlarged Board dependent upon Josefsson’s goodwill for the purpose of obtaining a positive “opinion” on their reappointment.

“The events surrounding G 1/21 have exposed the deficiencies in this “reform” in practice and make it clear that the “reform” has diminished rather than enhanced the independence of the Boards.”In other words, although Josefsson can no longer influence the outcome of the procedure directly, he still has considerable means at his disposal to influence it indirectly.

In the next part of the series we will summarise the current state of the procedure following the hearing of 28 May and speculate about what might – or might not – happen when the procedure resumes in July.

06.12.21

Virtual Injustice — Part 4: Mihály Ficsor, the EPO’s Hungarian “Fixer”

Posted in Courtroom, Europe, Law, Patents at 12:09 am by Dr. Roy Schestowitz

Previously in the series:

  1. Virtual Injustice — Part 1: António’s Increasingly Wonky Legal Fudge Factory
  2. Virtual Injustice — Part 2: The ViCo Oral Proceedings of 28 May 2021
  3. Virtual Injustice — Part 3: All the President’s Men…

Mihály Ficsor
Mihály Ficsor, former member of the EPO‘s Administrative Council and now Principal Director in the EPO’s DG5.

Summary: One key operative of António Campinos, who is fiercely in favour of software patents, has quite a colourful past and background

In this part, we begin our in-depth look at the head of the legal team representing the President of the Office in G 1/21.

The focus of our attention here is Mihály Zoltán Ficsor, a Principal Director in the EPO’s Directorate General of Legal and International and Affairs.

To begin with, it’s important to note that Fiscor, who was born in Budapest in 1964, belongs to the “elite” of the IP world.

“Ficsor Senior was a protégé of Árpád Bogsch, the long-serving Director General of the WIPO who headed the organisation from 1973 to 1997.”He is the son of Mihály J. Ficsor, former Deputy Director General of the World Intellectual Property Organisation (WIPO) in Geneva and a renowned international expert on copyright law.

Ficsor Senior was a protégé of Árpád Bogsch, the long-serving Director General of the WIPO who headed the organisation from 1973 to 1997.

According to Wikipedia, Bogsch was “a Hungarian-American international civil servant” who was born in Budapest in 1919 and “became an American citizen in 1959″.

However, the Wikipedia entry is very sketchy on biographical details and omits some interesting facts.

“The “Internationale Rechtskammer” (IRK) was an international professional association founded in Berlin in 1941 by Hitler’s personal legal adviser and Governor-General of occupied Poland, Hans Frank, who was executed at Nuremberg in October 1945.”It seems that Bogsch had to flee Hungary after the Second World War because his father was targeted by the post-war Communist government on account of his close links to the Nazi regime of Adolf Hitler.

More precisely, Bogsch’s father was one of the founding members and executive chairman of the Hungarian chapter of the “Internationale Rechtskammer” (“International Law Chamber”) which was set up in 1942. [PDF]

The “Internationale Rechtskammer” (IRK) was an international professional association founded in Berlin in 1941 by Hitler’s personal legal adviser and Governor-General of occupied Poland, Hans Frank, who was executed at Nuremberg in October 1945. The IRK established a transnational network of lawyers and legal scholars from states allied with or occupied by Nazi Germany.

The purpose of the exercise was to promote a pan-European, anti-liberal, and fascist-corporatist vision of the international legal order. During World War II, the Nazis used this network to pursue legal integration among the allied and conquered states as part of their efforts to build a “New Order” in Europe.

After the war, Bogsch’s father was put on trial, convicted and sentenced to prison on account of his collaboration with the Nazis.

“The purpose of the exercise was to promote a pan-European, anti-liberal, and fascist-corporatist vision of the international legal order. During World War II, the Nazis used this network to pursue legal integration among the allied and conquered states as part of their efforts to build a “New Order” in Europe.”Bogsch himself – who had graduated from law school in the early 1940s – was also a member of the civil law section of the Hungarian chapter of the IRK.

After the war Bogsch managed to secure a posting abroad with UNESCO in Paris and decided that it would be better for him not to return to Hungary as he was likely to face a similar fate to his father.

In the end, this exiled son of a convicted Nazi collaborator managed to reinvent himself as an American citizen in 1959. He rose to become a leading figure in the post-war globalist IP racket as head of the WIPO, where he was appointed Director General in 1973, by the Secretary-General of the United Nations. At the time in question that position was occupied by none other than the former Wehrmacht officer, Kurt Waldheim from Austria.

Mihály J. Ficsor  and his mentor, Árpád Bogsch
Mihály J. Ficsor and his mentor, Árpád Bogsch, son of a convicted Hungarian wartime collaborator who reinvented himself as an “American” and became WIPO supremo from 1973 to 1997.

One immediate beneficiary of Bogsch’s hegemony at the WIPO was his Hungarian compatriot, Mihály J. Ficsor, the father of the EPO’s Mihály Zoltán Ficsor. With Bogsch’s assistance and support, Ficsor Senior rose to the position of Assistant Director General of the WIPO in charge of copyright and related rights.

“One immediate beneficiary of Bogsch’s hegemony at the WIPO was his Hungarian compatriot, Mihály J. Ficsor, the father of the EPO’s Mihály Zoltán Ficsor.”Ficsor Junior followed in his father’s footsteps by pursuing a high-profile career in the world of IP administration, both at home in Hungary and internationally.

Ficsor Junior was favoured in his endeavours by external political circumstances, in particular the fall of the Iron Curtain in 1989 and the emergence of Hungary as a prominent member of the so-called Visegrád Group.

The Visegrád Group is a cultural and political alliance of four countries of Central Europe: the Czech Republic, Hungary, Poland and Slovakia. Its aim is to advance mutual co-operation in military, cultural, economic and energy matters and to promote their integration into the EU.

Visegrád Group
Meeting of the heads of the IP offices of the Visegrád Group and neighbouring countries in June 2011.

The heads of the IP Offices of the Visegrád Group meet on an annual basis and the meetings typically include representatives from the IP Offices of neighbouring countries such as Austria, Slovenia, and Croatia.

A photo-op from the June 2011 meeting shows [PDF] the director of the Hungarian Intellectual Property Office (HIPO), Miklós Bendzsel, in close proximity to the head of the Croatian IPO, Željko Topić and his protégée, Ljiljana Kuterovac.

The following year, during a visit by a delegation from the HIPO to the Croatian State Intellectual Property Office in February 2012, Topić was presented with the Hungarian Jedlik Ányos Award, shortly before he took up his position as EPO Vice-President.

“Ficsor Junior followed in his father’s footsteps by pursuing a high-profile career in the world of IP administration, both at home in Hungary and internationally.”Returning now to the main focus of our attention, Mihály Zoltán Ficsor started his career at the HIPO in 1988. He then worked as Head of the European Community Law Department in the Hungarian Ministry of Justice between 1995-1999 and took part in the negotiations on Hungary‘s accession to the EU.

Ficsor then returned to the HIPO as deputy director, serving under Miklós Bendzsel who held the position of HIPO director from 1997 to 2016.

As deputy director of the HIPO, Ficsor was the Hungarian representative on various international bodies and committees dealing with IP matters, in particular those established by the WIPO.

“In the next part we will see how Ficsor and his boss at the Hungarian IPO, Miklós Bendzsel, became important allies of Benoît Battistelli on the EPO’s Administrative Council during the period between 2009 and 2018.”Following Hungary’s ratification of the European Patent Convention (2003) and its accession to the EU (2004), Ficsor’s duties expanded to acting as a national delegate on the governing bodies of the EPO and the EU trademark agency OHIM/EUIPO in Alicante.

In the next part we will see how Ficsor and his boss at the Hungarian IPO, Miklós Bendzsel, became important allies of Benoît Battistelli on the EPO’s Administrative Council during the period between 2009 and 2018.

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