Bonum Certa Men Certa

The EPO's War on Justice and Assault on the Law -- Part 20: Summing up

Previously in this series:



Josefsson and kangaroo
Some concluding observations about the "kangaroo court" procedure in G 1/21.



Summary: The litigation treadmill, including lawyers who promote European software patents, may have fully taken control of the courts that decide on such matters through Josefsson and his circle, installed and backed by Battistelli and his friends

In the present series we have taken a detailed look behind the scenes at the EPO's Enlarged Board of Appeal as it proceeds - with what many consider to be indecent haste - to issue its decision in referral case no. G 1/21.



Many observers would be inclined to take the view that the decision has already been made by Josefsson and his "learned colleagues" on the Enlarged Board. From this perspective the scheduled hearing is likely to be an empty charade designed to lend a veneer of legitimacy to what is effectively a pro forma rubber-stamping exercise.

"Many observers would be inclined to take the view that the decision has already been made by Josefsson and his "learned colleagues" on the Enlarged Board. From this perspective the scheduled hearing is likely to be an empty charade designed to lend a veneer of legitimacy to what is effectively a pro forma rubber-stamping exercise."In the meantime, the EPO's propaganda department is doing its level best to deflect public attention from all of the awkward "elephants in the room", in particular the issues raised by the critical comments that have recently appeared in the IP blogosphere.

However, only the gullible and naïve are likely to be taken in by the "unanimously applauded, self-congratulatory bromides" which are spewed out at regular intervals by the EPO's PR "Nebelwerfer".

Despite the best efforts of Team Campinos, it is becoming increasingly difficult to conceal the serious governance deficits festering behind the EPO's Potemkinite façade.

In particular, the cheesy attempts to portray the "Master of Eglfing-Haar" as a thoughtful and cultivated connoisseur of modern art cannot disguise the desolate state of judicial independence at the Boards of Appeal.

"In the meantime, the EPO's propaganda department is doing its level best to deflect public attention from all of the awkward "elephants in the room", in particular the issues raised by the critical comments that have recently appeared in the IP blogosphere."There are clear signs that the unhealthy state of the EPO's judicial organ which already attracted a great deal of public attention during the Battistelli era has deteriorated even further on Josefsson's watch.

As we have seen, the erstwhile student radical and self-proclaimed "Habermasian" seems to be doing his level best to squeeze out the lifeblood of democracy inside his judicial fiefdom.

This is illustrated in a striking manner by the dramatic decline of the once highly active Association of the Members of the Boards of Appeal (AMBA).

Back in 2015, in the middle of the Boards' struggle to maintain their independence in the face of Battistelli's increasingly outrageous encroachments, IPKat reported on the launch of AMBA's "sparkly new website".

Six years down the road - and four years after Josefsson took charge in Haar - AMBA appears to have been neutered. Judging by the current level of activity on its website, the association has - for all practical intents and purposes - become defunct.

In addition to the "nobbling" of AMBA that has taken place on his watch, Josefsson is reported to display a consistently hostile attitude to any staff committee or union activities on the Boards of Appeal premises.

"In addition to the "nobbling" of AMBA that has taken place on his watch, Josefsson is reported to display a consistently hostile attitude to any staff committee or union activities on the Boards of Appeal premises."The manner in which Josefsson now conducts himself behind EPOnia's "Iron Curtain" of immunity is in stark contrast to the public image which he once cultivated in his home country.

As we have seen in the present series, back home in Sweden Josefsson was involved in the founding of Magasinet Arena - a political and cultural magazine with a progressive libertarian left-wing orientation.

Publicly available records indicate that he was still involved with the activities of the Arenagruppen shortly before he made his lucrative career move to the EPO in 2017.

As recently as 2015, Josefsson was listed in the annual report [PDF] of Arenagruppen as a member of the legal advisory council ("juridiska rÃ¥d") of Arena Idé.

Arena Idé (which means "Arena Idea") describes itself as a progressive, non-partisan think-tank with a focus on "labour market, economic policy, welfare, democracy and rights issues". It operates as a non-profit association funded by the Swedish trade union movement.

In 2017 Josefsson contributed to a book published by Arena Idé, under the title "Rätten till rättvisa". Translated into English the title means: "The right to justice" [PDF].

"The manner in which Josefsson now conducts himself behind EPOnia's "Iron Curtain" of immunity is in stark contrast to the public image which he once cultivated in his home country.""Calle" has certainly shown himself very skilled in "talking the talk" when it comes to such matters but sadly there still doesn't seems to be much evidence of any tangible "right to justice" at the EPO these days.

The sorry state of affairs at the Boards of Appeal provides yet another example of how the EPO remains a "captive organisation" operating in a legal no-man's land - outside of generally recognised "rule of law" norms and conspicuously exempt from effective independent oversight.

Apart from a fresh coat of paint, things have not really changed very much since the Battistelli era.

An interview with Josefsson published in JUVE in July 2019, reveals the basic modus operandi of the EPO's governance circles:

We are currently preparing a document which outlines the most important elements that can contribute to the quality of our decisions. In autumn this year, this document will be discussed with user associations and the Boards of Appeal Committee. Eventually, it will be made available to the general public.


It is important to note that the "user associations" to which Josefsson refers do not represent the public interest. They might better be described as "lobby groups" representing the interests of big business and the litigation industry.

Translated into plain English, the above statement can be understood to mean the following:

First of all we decide what we want to do behind closed doors. Then we have a consultation with lobby groups representing "vested interests" to check that they have no objections to our plans. Finally we get the Administrative Council to rubber-stamp the package.

After that the public is presented with a fait accompli.


What else could one realistically expect from a fully paid-up card-carrying member of Team UPC?

Nevertheless, it does seem rather incongruous to see a self-proclaimed "Habermasian" endorsing such an arrangement.

"It is important to note that the "user associations" to which Josefsson refers do not represent the public interest. They might better be described as "lobby groups" representing the interests of big business and the litigation industry."To put things into perspective, what we have here is a type of legislative decision-making process which takes place in a secretive manner behind closed doors and whose outcome remains immune from of any kind of independent democratic oversight or normative control.

The self-serving cliques who control these decision-making processes try to justify their actions by claiming that they are dealing with very complex technical issues beyond the understanding of mere mortals. They insist that such matters can only be dealt with in an appropriate manner by committees of "experts" meeting behind closed doors.

However, this line of argumentation is clearly skewed in favour of the "vested interests" that dominate the global IP system, namely those of the international litigation industry and its corporate paymasters.

"They insist that such matters can only be dealt with in an appropriate manner by committees of "experts" meeting behind closed doors."The paid shills and hacks who promote such views conveniently gloss over the fact that it is the general public that ultimately has to bear the social costs of the patent system, in particular the costs of its dysfunctions and governance deficits.

It goes without saying that such considerations are unlikely to be of much concern to Josefsson and his confrères in the EPO's governance circles, as they remain snugly ensconced inside their magic bubble of "immunity".

All things considered, Josefsson gives the distinct impression of someone who prefers to kowtow in a subservient manner to the "vested interests" that dominate the patent system, rather than someone who is genuinely interested in making an effort to take account of and safeguard the interests of the general public in the EPO's contracting states.

The litigation industry and Josefsson
Josefsson seems to be in his element rubbing shoulders with members of the international litigation industry.



The photographic record of the 33rd US Bar / EPO Liaison Council meeting which took place in November 2017 indicates that "Calle" is in his element rubbing shoulders with members of the international litigation industry.

"It goes without saying that such considerations are unlikely to be of much concern to Josefsson and his confrères in the EPO's governance circles, as they remain snugly ensconced inside their magic bubble of "immunity"."Of course, Josefsson would never openly admit to this and he always takes great care to pay lip service to the public interest.

For example, in the JUVE interview referred to above he offered the following well-rehearsed pious platitude for public consumption:

"We must meet expectations from society on the highest quality of our decisions."


That sounds wonderful indeed but it remains to be seen whether or not the decision making process in the pending referral case G 1/21 will measure up to these expectations.

The signs emerging from the procedural record so far are not very promising.

EPO further extends pilot for opposition hearings by VICO
6 days ago the EPO arrogantly extended the 'programme' or 'pilot' in question, without bothering to even wait for a decision on the legality (as if it had already fixed the outcome and has no doubts about it).

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