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24 November 2015Patents

EPO threatens ‘defamatory’ blogger with legal action

The European Patent Office (EPO) has claimed that a post published by a blogger is defamatory and has threatened legal action.

The disputed post is called EPO: Aiding a racketeer and was published in October on the Techrights blog, run by Roy Schestowitz.

Schestowitz is a long-standing critic of the management at the EPO and its president Benoît Battistelli.

Schestowitz told WIPR: “It is incredibly worrying that, despite being a public body, the EPO is now intimidating national delegations, lawyers of staff representatives and even journalists or bloggers.

“This shows that not only are they chilling internal voices, but also external voices—clearly an abusive overreach that demonstrates the imperative to annul legal immunity and take swift action,” he added.

A spokesperson for the EPO was not immediately available for comment.

In an exchange of letters, seen by WIPR, David Allen Green, of counsel at law firm Preiskel & Co and representing Schestowitz, and law firm Fieldfisher, which was representing the EPO, argued over whether a defamation claim will stand.

Law firm Mishcon de Reya has since confirmed that it has taken over from Fieldfisher in representing the EPO.

Addressing the EPO, Green wrote that “the Derbyshire rule provides a complete defence to any claim your EPO client can bring”.

The Derbyshire rule stems from a 1993 dispute between Derbyshire County Council and the UK-based Times Newspapers group.

The UK’s upper legislative body, the House of Lords, determined that a public body should be open to uninhibited public criticism and therefore does not have the right to maintain an action for damages for defamation.

However, if an individual’s reputation is impaired by a publication attacking an authority, he or she can bring a defamation claim.

Green said that “the work of the EPO is a matter of legitimate public concern”.

He added: “There is, as your client knows, a significant public debate as to the work of the EPO; a debate to which the EPO is itself contributing. The effect of sending libel threats such as yours will inhibit that debate.”

However, Fieldfisher hit back in a letter dated October 23, saying that it is able to sue and citing article 5(2) of the European Patent Convention (EPC) as its legal basis.

Under article 5(2), the EPC “shall enjoy the most extensive legal capacity accorded to legal persons under the national law of that state; it may in particular acquire or dispose of movable and immovable property and may be a party to legal proceedings”.

** WIPR amended and republished this story today, November 24, at 15.30 **

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