tag:blogger.com,1999:blog-5574479.post4616552717142840481..comments2024-03-29T06:00:27.896+00:00Comments on The IPKat: ViCo oral proceedings on the legality of ViCo oral proceedings - G1/21, The SequelVerónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger10125tag:blogger.com,1999:blog-5574479.post-56906731656904038082021-07-16T12:32:45.545+01:002021-07-16T12:32:45.545+01:00There is a press release on the BoA web site indic...There is a press release on the BoA web site indicating that the decision is that oral proceedings may be held by video conference without the approval of the parties in a time of emergency.<br />https://www.epo.org/law-practice/case-law-appeals/communications/2021/20210716.htmlKantnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-68024773144368429532021-07-09T10:29:10.155+01:002021-07-09T10:29:10.155+01:00And particularly disturbing about that is, as I...And particularly disturbing about that is, as I'm sure a number of readers on here will know, the big Iberian based office that is the source you discuss was (and presumably still is) consistently poor at most administrative tasks - spare a thought for anyone needing to do a change of representative for a registration of a client who uses more than one representative!Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-76924881418507895672021-07-09T07:30:53.009+01:002021-07-09T07:30:53.009+01:00@ Wagtail
You are certainly right. The cross polli...@ Wagtail<br />You are certainly right. The cross pollination is taking dramatic levels.<br />There should be a cooling off period, for instance 2 years, between functions at the AC and at the EPO. <br />There is also another problem. The cooperation budget is misused to "buy" votes at the AC. All the presidents used this budget to a certain extent in order to obtain favourable votes at the AC. <br />The last two presidents have expanded this mechanism to a degree which is not acceptable. The cooperation budget is modulated after each AC session. The countries having voted "correctly" see their cooperation budget increased. The countries not having voted "correctly" or having asked embarrassing questions see their cooperation budget reduced.<br />Guess who is presently PD cooperation: the husband of Mme HR. Both have come to the EPO with Napoleon 4th. She was propelled to PD HR and we all know how disastrous this was for the staff. He moved from the post of chef de cabinet of Napoleon 4th to PD cooperation.<br />The present tenant of the 10th floor preferred to be surrounded by people coming from the Iberian peninsula in general and Alicante in particular. <br />The EPO is rotting, and as Mao (who I do not admire) was right when he said the fish stinks from the head. Attentive Observernoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-18508279754750144092021-07-08T11:55:37.514+01:002021-07-08T11:55:37.514+01:00If there were any doubts remaining about the willi...If there were any doubts remaining about the willingness of the President's legal representatives to defend the indefensible, then Judgement 4430 of the ILO AT should set those doubts aside:<br />https://suepo.org/public/J4430_132_%20Circular347.pdf<br /><br />The Tribunal comprehensively dismissed the EPO's arguments on whether the complaints were receivable. It also found a total of five reasons for concluding that provisions enacted by the EPO were, contrary to the arguments of the President's representatives, unlawful violations of the right to strike.<br /><br />Such violations of fundamental rights of employees were always as plain as a pikestaff to anyone who cared to consider the effects of the provisions enacted by the EPO (with the assistance of the Administrative Council). The ILO AT has therefore done nothing more than state the obvious. However, given that it receives funding from the EPO, there were no guarantees that the Tribunal would reach that obvious conclusion. Also, it took a total of 8 years for the EPO's staff to be vindicated in such an open-and-shut case. The EPO's continued approach to defending the indefensible has therefore achieved a very significant delay to justice being served. Moreover, it is unclear whether the EPO will now set its house in order by settling all other complaints against the unlawful provisions, and rescinding the provisions in question ... though I would not hold my breath waiting for them to do this.<br /><br />How long can the patent profession tolerate a situation in which the EPO, with the assistance of the AC, adopts very clearly unlawful measures and then - against all sensible legal reasoning, logic and common sense - fights tooth and nail to defend them? As demonstrated by G 2/19, G 3/19 and G 1/21, the EPO no longer restricts the application of "controversial" measures to its staff.Proof of the puddingnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-52919754482345520592021-07-08T11:50:48.310+01:002021-07-08T11:50:48.310+01:00@Attentive Observer
Is it any wonder that the AC ...@Attentive Observer<br /><br />Is it any wonder that the AC has given up its control function and that the tail is wagging the dog?<br /><br />Since 2010, the Office Administration has been completely infiltrated by former AC members.<br /><br />To list just a few:<br />Battistelli, Casado, Lutz, Topic, now followed by Campinos (who used to head the Portuguese delegation before he moved to Alicante), Ernst and most recently Ficsor as PD in the Legal Affairs department.<br /><br />With such extensive cross-pollination and no effective external oversight is it any wonder that things have developed as they have?<br /><br /><br />Wagtailnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-4097198933034590552021-07-08T08:51:14.658+01:002021-07-08T08:51:14.658+01:00One of the further problems in the present case is...One of the further problems in the present case is that judges cannot decide upon the law as this is for the legislator to do. They have to interpret it. <br />In this respect the dynamic interpretation in G 3/19 was just there in order to affirm that R 28(2) was conform with Art 53(b) which is blatantly not the case. <br />It was therefore good to see that the author of this dynamic interpretation and his superior where removed by their pairs.<br />I doubt that with the present composition in G 1/21 we will face any dynamic interpretation. <br />If the EBA give a positive reply to the question raised outside the pandemic, we can say good by to the rule of law at the EPO. <br />I just hope that the other 5 members of the EBA will have enough dignity to say no to such a shamble.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-68582542857888098732021-07-07T16:57:15.828+01:002021-07-07T16:57:15.828+01:00Contrary to the view of the President's repres...Contrary to the view of the President's representative, a "dynamic" interpretation based upon secondary legislation is NOT possible in this instance.<br /><br />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<br />patents”. This criterion is NOT satisfied with respect to Article 116 EPC.<br /><br />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).Proof of the puddingnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-56478935664851916052021-07-07T16:23:36.903+01:002021-07-07T16:23:36.903+01:00Had the present and the previous management team b...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.<br /><br />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. <br /><br />The AC has completely given up its control function, it is as has been the said the tail wagging the dog. Attentive Observernoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-88016319535613879532021-07-07T09:21:22.291+01:002021-07-07T09:21:22.291+01:00The founding fathers of the EPO are spluttering in...The founding fathers of the EPO are spluttering in their cocoa or turning in their graves. Sad days.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-48840129592859287512021-07-06T18:00:11.388+01:002021-07-06T18:00:11.388+01:00It is clear that with the original composition of ...It is clear that with the original composition of the EBA the answer to G 1/21 was known in advance as four members of the EBA had publicly expressed the view that it should be left to the discretion of the boards which form OP should take. With two of those send out by their peers the answer is not so clear cut, certainly in view of some of the questions raised by members of the EBA during the OP.<br /><br />It remains scandalous that the first deliberation on partiality was taken in the absence of the parties and the parties did not receive the declarations of the members suspected of partiality. This also explains the further requests on partiality from the opponent. The fact that the chair of the boards which was also chair of the EBA in G1/21 before he was removed does not simplify the matter. <br /><br />The attitude of the president’s representative was obnoxious to say the least. Claiming against any for form of common sense that Art 116 in the absence of any specific indications gave the right for the EPO to decide the form of OP by ViCo and the parties have no say in the matter. He went so far as to claim that there has never been a right to have OP on the premises and that a right which does not exist cannot be taken away. <br /><br />One thing became clear during the OP is that OP by ViCo have no legal basis in the EPC as it stands.<br /> <br />For the president’s representative G 3/19 (the famous dynamic interpretation) has shown that it was perfectly possible to amend the EPC by way of secondary legislation. The absence of the rapporteur in G 3/19 could save us from a further dynamic interpretation. <br /><br />For the president’s representative G 2/19 only provided that only in case of the OP on the premises of the EPO that the sentence in said decision “Users of the European Patent Organisation's services can legitimately expect that the European Patent Office's departments will not perform acts at whatever other place they choose” was valid. <br /><br />In case of OP by ViCo “The venue of the oral proceedings will be deemed to be the location where the opposition division is set up.” See decisions of the president of 01.04.20 and 14.04.20 on OP by ViCo before ED resp. OD. In other words the location is purely virtual.<br /><br />This actually the wish of the president. In its New Normal the president wants to set up a virtual EPO where ED and OD will only be residing on paper at a given location of the EPO. <br /><br />Without the possibility of the BA to have the discretion to decide on OP by ViCo without the consent of the parties and the possibility to authorise its members to be sitting wherever they desire when having OP by ViCo, the president cannot implement his New Normal.<br /><br />This is actually the true reason why the president is so keen to obtain a positive reply from the EBA in G 1/21. With Mr J., Mr B, Mrs R and Mr A the result was acquired, now I am not as sure as only Mrs R and Mr E. were left. <br /><br />The comparison 300/3000 does not hold. It simply means that the parties could have cases decided and a backlog of opposition decisions could be avoided. It does not mean that all the parties were keen on mandatory OP by ViCo after the pandemic. In view of the majority of the amicus curiae the contrary seems correct. <br /><br />It is difficult to understand why mandatory OP by ViCo after the pandemic would give quicker access to justice as the periods to summon and to file documents under R 116(1) do not change whether the OP is by ViCo or in presence and certainly do not justify pushing for mandatory OP by ViCo outside the pandemic. Attentive Observernoreply@blogger.com