Fascism is making a comeback in service of patent extremists

Summary: Germany's crisis deepens as more Germans become not only aware but also increasingly concerned about the state of the law in an age of EPC/EPO authoritarianism and UPC 'lobbyism' (profits over facts and laws)

THE EPO's judges are not independent. They lack autonomy. Don't trust us... don't ask us... ask them (privately). They already said so publicly, albeit collectively rather than individually (to limit capacity to retaliate). There's still a decision on the way regarding software patents (or "simulations") and the EPO regime is lobbying judges not to decide as they see fit -- as per the law -- but as the EPO (Office) sees financially beneficial to itself.

"Team UPC will say just about anything to pretend UPC is coming..."Can we trust such judges or judgment mechanism in a larger context? No, we cannot.

In a very UPCistic fashion, "some time in October" became "maybe November" (just as Germany enters lock-down "lite") and we still aren't seeing a second vote on UPC/A. Just as we predicted...

There are further oppositions to the UPC, culminating in more concerns from German politicians (see the comments in particular). Think of it as yet another torpedo.

Again, just as we predicted...

They keep talking nonsense; Team UPC will say just about anything to pretend UPC is coming (at the same time 2 years ago Team UPC kept telling us the FCC would dismiss the constitutional complaint by Christmas of 2018). Both the time and the outcome were wrong. Fake rumours, politically motivated stunts.

The EPO's management has already shelved aside legitimate concerns about the Haar situation/status in a coordinated obfuscation campaign (António Campinos covering up Benoît Battistelli's abuses).

Thorsten Bausch (Hoffmann Eitle), a German, grew increasingly uncomfortable about this whole thing (his country's image and decline/descent to post-constitutional era) and hours ago he wrote about lack of trust and judicial independence (we also received some E-mails from other Germans expressing serious concerns about EPO-connected corruption in recent days).

To quote Dr. Bausch:

Thus, trust in our institutions and in particular trust in an independent judiciary is so fundamental. If we lose this trust, we are literally sawing off the branch all of us are sitting on.

Readers paying attention to the news around the globe will find it easy to think of manyfold examples confirming this simple truth, but as this blog is a patent blog, let us turn back our attention to a popular subject on this blog, the independence of the EPO’s Boards of Appeal, or the lack thereof as some critics claim.

While I have written about this subject a couple of times myself, I would today like to direct our readers’ esteemed attention to two papers of my UK colleague Mike Snodin that were recently published in the CIPA journal (I hope that this link works, just scroll down the page and click to see a full-screen version of the latest edition). Mike’s first article is titled: “G 3/19: A need to improve the perception of independence of the EPO Boards of Appeal?”, and the second “G 3/19: Do flaws in the EBA’s reasoning amplify concerns regarding the perception of independence of the EPO Boards of Appeal?”

So, Mike Snodin has reviewed decision G 3/19 and its background in considerable detail. He is fairly critical about the Enlarged Board’s reasoning on the whole, but the main point he makes is this: Fundamentally, G 3/19 was about the new Rule 28 EPC by which the Administrative Council (AC) “interpreted” Art 53b EPC in a particular way that essentially overturned the Enlarged Board’s opinion in G 2/12 and G 2/13. The referring Board 3.3.04 in T 1063/18 thought that the terms of Art 53b EPC, as understood by the Enlarged Board in its earlier decisions, prevail over any terms of the Implementing Regulations as amended by the AC. The EPO President and the Administrative Council, however, thought that this result cannot stand, and the EPO President offered a President’s referral of the case to the Enlarged Board. As Mike Snodin reports, “this proposal received broad and overwhelming support from almost all Contracting States.” The referral was therefore made, and resulted in the Enlarged Board essentially overturning its earlier decisions.

Before this background, Mike Snodin wonders whether the members of the Enlarged Board of Appeal were really free to come to any different decision than the one they arrived at. Concerns about the perception of independence of the Enlarged Board were raised based on two undeniable facts: (i) the Administrative Council has disciplinary authority over the members of the Enlarged Board to the extent that they are EPO employees, which most of them are. (ii) EBA members are appointed by the Administrative Council, but only for a five year period, and their re-appointment again depends on the AC’s consent and goodwill.

Notice that first (and sole at this time) comment that says: "For we patent attorneys, trust in “science” is fundamental to our profession. From time to time, corporate interests try to erode trust in science."

Kluwer Patent Blog has done a number of pieces critical of the UPC recently (Benjamin Henrion interview regarding UPC's impact on software patents in Europe and the two articles above). Quite a change compared to what its Bristows "moles" had done for years until they retired (prematurely we might add). We sort of applaud Kluwer for pursuing a little more truth than just jingoistic malarkey for illegal and patently unconstitutional agenda. However, we recognise that it's far too easy to change one's tune after something already died (as if to make up for one's prior lies). ⬆