The EPO operates outside the Rule of Law and judges now know it, seeing what their colleague has been subjected to

Summary: How Herr Ernst ('Herrnst') succumbing to the will of Battistelli represents a rogue state of affairs that undermines the Unitary Patent (UPC) and should get further scrutiny from the international 'establishment' (whoever has sufficient political clout as well as desire to tackle these profound issues)

Kluwer Patent Blog, a longtime propaganda platform of Team UPC (the writers there have a stake in the outcome), is facing severe backlash in the comments. See the comment here (probably in reply to Bristows) and 15 comments in reply to Tilmann. Those are very UPC-hostile comments in a pro-UPC blog which got caught deleting UPC-hostile comments in the past. It's quite revealing and increasingly evident that even the patent 'industry' has shifted or changed its tune. Indeed, people in the legal community have totally lost interest in the UPC and recognise the UPC's dangers, not just the unlikely event of it becoming a reality (soon or ever). WIPR wrote about it the other day. But there's something more interesting in this blog's comments.

"It's quite revealing and increasingly evident that even the patent 'industry' has shifted or changed its tune."A comments thread which we mentioned more than 2 weeks ago (even more than once) and again several days later is still evolving. Some people who appear to be close to the action have posted some information or circulated it. It's about the EPO scandals which put at risk the UPC because they demonstrate structural deficiencies and lack of oversight.

The following comment is based on a claim from an anonymous comment that we were never able to verify as truthful (and is likely false), but the remainder says that "if the Register is correct to report that the EPO’s management was responsible for last-minute changes to the agenda for the meeting (including the crucial part discussing Mr Corcoran), then it would appear that Mr Battistelli’s fingerprints are all over the AC’s decision."

Constitutional crisis in Germany, implicating a German chairman (and UPC proponent). The German constitutional judges hopefully take note of this.

A comment on IPKat that was posted yesterday (but only became visible today) suggests that the AC has “independently” suspended Mr Corcoran AGAIN.

http://ipkitten.blogspot.co.uk/2017/12/the-ilo-rules-reinstatement-of-board-of.html

If this is correct, then I take no pleasure in saying “I told you so” (in my prediction from 8 December): http://patentblog.kluweriplaw.com/2017/12/07/the-ilo-is-alive/

So, as predicted, we must now ask a more fundamental question: is the AC performing its function?

To begin to answer this, we need to first consider several important facts.

Firstly, the “evidence” against Mr Corcoran has not been proven (by any body untainted by the partiality of Mr Battistelli) to amount to an offence that would justify his suspension.

Secondly, as I understand it (https://www.theregister.co.uk/2017/12/14/epo_mess_latest/) Mr Corcoran was not invited to the relevant session of the AC meeting, and so was unable to provide a defence to the charges against him … which charges, we must remember, stem from a process that has been condemned by the ILO as “partial”.

Thirdly, if the Register is correct to report that the EPO’s management was responsible for last-minute changes to the agenda for the meeting (including the crucial part discussing Mr Corcoran), then it would appear that Mr Battistelli’s fingerprints are all over the AC’s decision.

So, to sum up, the AC has responded to an ILO decision condemning partiality in the handling of Mr Corcoran’s case by sanctioning him again on the basis of “tainted” evidence and a “tainted” manipulation of the meeting agenda, and without even giving him a chance to respond to the accusations against him.

If even only a part of this is true, then we have an answer to the question of whether the AC is performing its function: it’s a clear “no”. What a disgrace!

"The upper management of the Office and the AC, starting with its new chairman are a disgrace," said the following comment, alluding to 'Herrnst' and not just Battistelli (he continues Kongstad's tradition of enabling Battistelli):

I have always thought that somebody cannot be sanctioned twice for the same offence. Even if the pretext is different, for instance a relation of confidence has been broken, it boils down to the same, as the basic considerations stemming from the early attack, still apply. The whole thing is a clear denial of justice.

I find it not correct that the fate of a member of the BA is dealt with in a confidential session of the AC in which the person subject to the discussion cannot bring in his point of view. But the president was allowed to bring in his opinion. That the texts do not foresee it is not an excuse. The texts have not foreseen either such a mess, and it is the primary fault of the office and of the AC that we are now in such a situation. It will end up with a further round before the ILO-AT, but what will it bring in substance?

It will again take years until a decision comes, and even if for the EPO heavy fines would result from the procedure, the users of the system will have to pay them, not the “managers” and “lawyers” responsible for the whole mess. It should be those people who shoot foot the bill, already now.

The upper management of the Office and the AC, starting with its new chairman are a disgrace. I have as well doubts about the capacity of the new chairman of the boards to resist the tenant of the 10th floor.

The German Constitutional Court cannot overlook such a lack of independence. I hope it will react one way or the other. There is not only the complaint about the UPC pending before it, but as well other claims linked directly with the functionning of the Boards. Those claims have not been dismissed for formal reasons, but admitted.

As pointed out in another comment, the whole thing spells doom for the UPC:

Opposition against the ILO decision comes from fearful members of the AC and Mr. Battistelli who only have a practical interest

I don’t know you, but I so much would like Prof. Tillmann, Wouter Pors and others to comment on what is going on at the EPO … – unless they are too busy trying to shore up the UPC to notice that Mr. Battistelli is undermining their castle from below.

"Sad EPO Staff" then wrote something which we saw alluded to in The Register:

FOR YOUR INFORMATION TODAY :

According to reliable sources at EPO, Patrick Corcoran, the during close to 3 years, unduly suspended DG3 judge, has today 20th Dec. 2018 (12 days after the ILO-AT judgment in his favour) still no computer or access to his e-mail account. His phone number has not been restored. His salary transfer for December was still based on the reduced salary.

So it appears that “someone” is impeding the implementation of the ILOAT decisions.

Guess who that someone might be.

We frankly believe that the UPC will never materialise. It's essential that German politicians and judges are made aware of all this. ⬆