Oddfellow November 2018

J.A. McStea, Teemacs GmbH

Trouble (still) at t’mill…

Bubendorf 28 November 2018

So, are things any happier in EPO-land since the disappearance of Benny the Batt and the arrival of Antonio, reputedly a staff-friendlier person? Well, he did say that he would be happy to talk to the SUEPO, the staff union of the EPO. However, in the light of subsequent reports, I can’t help wondering whether Antonio’s response is along the lines of Charles de Gaulle’s je vous ai compris (I have understood you) to the pieds noirs (French settlers in Algeria) from the balcony of Algiers town hall in the midst of the 1960s Algerian crisis. They took it as a sign of support, but it was more likely that it was deliberately ambiguous, and, notwithstanding that he also said the magic words Algérie française! somewhere along the way, he was already moving towards the exit in Algeria and the end of French rule (and the pieds noirs’ cozy lifestyle) to end a bloody war.

There was an instance of an Examiner at The Hague who rolled up for work one Tuesday morning, having worked on the previous Monday, to find that his badge had been deactivated. He enquired at the reception desk, only to find that he had been summarily dismissed. He was given an opportunity to collect personal items and was then escorted from the building by security guards. Why? The EPO service regulations permit an Examiner to be dismissed for incompetence, but only after remedial measures have failed. No such remedial measures were ever instituted, and, so far as I’ve heard, no complaints about the performance of the particular Examiner were ever made. Perhaps the reign of Benny the Batt continues, but with a smiley face. Benny suffered a reverse when two of the SUEPO representatives, whom he had suspended from duty, were ordered reinstated after a hearing at the ILO. Benny succeeded in getting more EP patents out the door by vigorously pursuing ever-higher productivity targets, but at the cost of much unhappiness among the staff and possibly a reduction in patent quality.

Meanwhile, on the Unified Patent Court front, there remains the question as to whether the UK can remain a UPC member (always assuming, of course, that we actually do get a UPC). Many folks in the UK seem to be making hopeful noises, although I confess I can’t see how it can possibly happen, especially with the “take back control” attitude of the Brexiteers. Now has come a paper from two researchers at the Max Planck Institute in Germany,


arguing that it isn’t possible. Their argument is that the extension of the UPC to the UK is impossible, as “any such extension is incompatible with the autonomous character of EU law and its institutions”. As the UK has voluntarily put itself outside the EU, it cannot participate. This was promptly countered by someone writing under the pseudonym of “Atticus Finch” (the decent lawyer in Harper Lee’s To kill a Mockingbird, famously played by Gregory Peck in the film). Mr/Ms Finch argues that the Planckians have taken a too theoretical and too little practical view of matters. His/her view? Where’s there’s a political will, there’s a way.


We’ll just have to wait and see who’s right.

Given the doubts, this will certainly increase the number of UK patent attorney firms setting up shop on the far side of the Irish Sea – a few have already done so. Of course, any Irish ratification of the UPC has to be put to a referendum, but in traditional Irish fashion, I’m sure the Dáil Eireann, Ireland’s parliament, will keep asking the question until it gets the right answer, or at least the answer it wants (that’s what it did with the referendum on the Maastricht Treaty that gave rise to the EU as a legal entity, as opposed to a trading bloc).

The lack of the UK in the UPC would make it a doubtful proposition for many applicants, Givaudan included. I was reminded of another downside to the UK’s non-participation in the last Basel Intellectual Property lecture of this year. This was all about SPCs, and more particularly how they are handled by the CJEU. The moral of the story was that this is badly-drafted legislation badly interpreted by the CJEU, whose judges seem to have as few clues about the patent world as do the justices of the US Supreme Court (which is saying something). In many cases, the much more IP-savvy UK judges are passing to their CJEU counterparts broad hints, and even bald statements, in their judgements. Mr. Justice Arnold, in particular, appears to be running out of patience. In Teva v. Gilead, he wrote, among other things, “I am encouraged…to believe that there is a realistic prospect of the Court providing further and better guidance to what it has hitherto provided” and “In the hope that it will assist the Court of Justice to provide a clear answer this time, I will again offer my own suggested answer to this question…” It seems to me that the loss of the highly-capable UK judges to the UPC would be a major blow to the credibility of that institution.

In September, the Waldenburg valley in which we live said farewell to an old friend, the steam locomotive Gedeon Thommen, which, with its vintage carriages and restaurant car, chuffed up and down the 12 km of the Waldenburgerbahn (WB) on summer weekends. The WB is owned by the BLT, one of Basel’s tramway companies, and it will convert the line from the current 75cm gauge (the narrowest in Switzerland) to metre gauge, the gauge used by most of Switzerland’s narrow-gauge lines and all of the city tramways. This will mean wider, less cramped carriages, more comfort (air-conditioning in summer!) and cheaper maintenance costs. It may even ultimately mean driverless trains. To convert the Thommen to metre gauge would have been possible, but prohibitively expensive, as would the provision of new maintenance facilities at Waldenburg just for it. This would have been far beyond the means of the Verein (association) that ran the Thommen (and the BLT made it quite clear that it wasn’t paying). So the Thommen and its coaches will be enshrined in a display building currently under construction near one of the stations. And on the 23 September, the last day of operation for the Thommen, most of the line was given over to it, the normal electric WB trains on that section being replaced by buses for the day. People queued at various stations for a last ride and photographers were at all the best vantage points along the line (fortunately it was a nice day). And so another inefficient but charming bit of the world that was falls prey to progress. Pity.

And with that I wish you all a happy Christmas and a successful and above all healthy 2019.

< Back