Bonum Certa Men Certa

European Patent Office Insists That Obeying the Law is Not Realistic, UPC Another Example of That

Summary: The EPO's arrogant response to a media query about the strike shows that it still doesn't grasp the basis for the widespread anger, thus totally incapable of tackling the crisis

THE EPO strike is about 1.5 days away. Some European (continental) media, not just British media, covers this. Translations would be well received if anyone could send us some.



Based on this followup article from WIPR (published a short while ago), the EPO calls upholding the law (not presidential monarchistic decrees) “unrealistic demands”. As the writer pointed out, in order to balance the nonsense from the EPO's PR team: "The CSC had called for an immediate suspension of disciplinary measures put in place against three staff representatives earlier this year, a “truly independent review” of their cases by a body that is trusted by managers and staff, a revocation of recent changes to the EPO’s service regulations, and an initiation of open and fair negotiations."

Well, how about bringing back the suspended judge, who was put on 'house ban' against the rules of the EPO? The EPO continues to show contempt for the rule of law and even hires (for the highest positions) people who have a track record of serious crimes, based on many criminal charges against them. As a reminder, for the sake of completeness regarding the strikes, see the following older articles:



The EPO's contempt for the rule of law (international, European, and national) can be seen also when it comes to the UPC. As someone pointed out this morning [1, 2]:

So what happens with a not opted out "bundle" patent that is litigated at the UPC?

Let's assume that the relevant national law under Article 5(3) of Reg. 1257/2012 is UK law. Does the UPC apply Section 60 as applicable to non-unitary patents, or does it apply Articles 25 to 27 of the UPCA?

I have seen commentary that definitively states that "For determining the infringement question relating to European or Unitary Patents, the UPC shall apply the articles regarding direct infringement (article 25), indirect infringement (article 26), limitations of the effect of a patent (article 27), and exhaustion of rights (article 29) provided in the UPC Agreement".

I cannot see the UK Courts going against the wording of the UK Patents Act. Thus, if the above-quoted commentary is correct, does this mean that the applicable law of infringement for the UK will be determined by the court in which the patent is litigated?

As there are substantial differences between the different laws (e.g. with respect to indirect infringement) such a conclusion would hardly be consistent with fundamental provisions governing legal certainty!


Upon reflection, instead of referring to the indirect infringement provisions, I should have perhaps have referred to the experimental use exemption in Section 60 (6D) (vs. that in UPCA Art. 27(b)).

I had quite forgotten that the Member States are taking a narrow interpretation of "European patent" - to mean, for example, "EP(UK)" rather than just EP. Baroness Neville-Rolfe made that clear in her letter relating to the amendments to UK law.

http://www.publications.parliament.uk/pa/ld201516/ldselect/ldsecleg/94/9406.htm

It is an interesting question whether the definition of "European patent" in the UPCA ("a patent granted under the provisions of the EPC, which does not benefit from unitary effect") supports that view. Perhaps those who are more familiar with the legislative history of the UPCA can comment.

However, the Baroness has also put forward a (rather tenuous) argument that Article 149a EPC overrides both of Articles 2 and 64 EPC - and so we should perhaps not take every statement in her letter to be true.

On this latter point, I have always puzzled over why an ability to conclude "special agreements" should somehow be interpreted as meaning that long-standing, fundamental tenets of the EPC (such as Article 2 and 64) can be overridden when the "special agreement" in question contains no explicit provisions to that effect!


We occasionally hear from patent lawyers (off the record) about how the UPC makes no sense from a legal standpoint. It's one of those things that are done in secret, supposedly for "the better good" or something like that (the words "unity" and "community" get thrown around a lot).

Amid several recent articles about the UPC from a UPC booster (outline of these recent Fordham 2016 posts here), some of the comments we found yesterday start with this one:

Might the UPC might make "precautionary" oppositions less necessary? Well, perhaps - though the influence that this factor will have on the number of oppositions will, at least in the short term, be limited by the fact that there will be significant markets (such as those of Spain and Poland) that will remain out of the system.

On the other hand, one could argue that the rather high costs for filing a counterclaim of invalidity at the UPC might make competitors more inclined to file "precautionary" oppositions. And why not? An opposition gives you another bite of the cherry, adds relatively little to total litigation costs and deals with markets that the UPC cannot reach. What's not to like about that?

This latter point emphasises the fact that the UPC and EPO oppositions need not be mutually exclusive. Each has its own pros and cons and will therefore be used (or not used) if it suits the needs of each individual litigant. Businesses therefore need both systems to be strong and effective. So I would say that it is about time to reverse what appears to have been a deliberate policy of under-staffing of the Technical Boards of Appeal.


"I thoroughly agree with your approach," one person responded. "Having one's cake and eating it has always attracted me as a philosophy."

Consider what the UPC would mean to boards and what mockery Battistelli made of the law when he suspended a judge in spite of the boards' institutional independence.

One patent lawyer seems to accept that the boards are under a conscious attack (see above) and adds: "I cannot understand why the AC goes for so long, negligently tolerating such nonsense from the President. Mere hand-wringing is not enough to deal with such a man. He (like any self-respecting CEO) just laughs at that."

Here is the whole comment:

Well said, Proof [the commenter above]. I expect the UPC mindset to be not a million miles away from that of the courts in Germany. So, if your story to the UPC, when the patent is asserted against you, is that the patent should never have issued, the court might ask why you never opposed it when you had the chance. It is not only The Lord who helps those who help themselves. If you cannot convince the EPO that the issued patent is too broad, why should you suppose you will fare any better at the UPC. Look what's happening now, in the USA. These days, if you want a US patent struck down, go and ask the USPTO to oblige. The USPTO is overwhelmed with petitions to revoke.

Incidentally, I baulked at your word "policy" when it comes to the President of the EPO declining to present to the AC any names for filling the ever more numerous gaps in the staffing of the Boards of Appeal at the EPO. For all I know, he is doing it capriciously, in a fit of pique, because the AC still won't give him what he is demanding. I cannot understand why the AC goes for so long, negligently tolerating such nonsense from the President. Mere hand-wringing is not enough to deal with such a man. He (like any self-respecting CEO) just laughs at that.


Speaking of the USPTO, there is now something in the US called (or alluded to as) ITC reform [EN|ES] and MIP's Michael Loney in New York writes about it as follows: "A bill aimed at protecting US companies at the International Trade Commission (ITC) from abusive litigation from patent trolls has been reintroduced in the House of Representatives. Representatives Tony Cárdenas, a Democrat from California, and Blake Farenthold, a Republican from Texas, are sponsoring the "Trade Protection Not Troll Protection Act."

Not only Europe but also the US is trying to reshape patent laws. As we shall show in our next post, just like in Europe, heads and former heads of patent offices intervene in the process, which is unacceptable. It's supposed to be a process for courts and governments to decide on, not for-profit entities and greedy opportunists.

Recent Techrights' Posts

Slopwatch: Plagiarism and "Linux" Articles by Bots
Sites that do this won't survive; many of them rely on slop services (suppliers) that will cease to exist after the bubble bursts
 
The Lawsuit by Clients of Brett Wilson LLP Against Brett Wilson LLP is Officially On, It is Progressing, The 'Experts' Pick Outside Law Firms (RPC and Mills & Reeve) to Spare Them From Litigants in Person
So it is probably quite potent
Staying Happy in Times of Crackdowns on Civil Society
Optimism in this sort of "new reality" or "new normal" seems like something for the irrational person
"Nobel" Exploited Posthumously for "AI" Hype, Now They Do the Same With "Quantum"
ere have been many jokes about "Nobel" for peace (often granted to pro-war people) and a fake one for "Economics" (establishment propaganda)
Distinguished Lecture by Richard Stallman This Coming Monday in Rome
After "Free software, Crucial for Freedom in a Digital World"
Links 10/10/2025: Putin Admits Russia Downed Azerbaijan Airlines Jet, More New Heat Records
Links for the day
Noteworthy Claim That IBM is Firing a Lot of Lawyers This Week (RAs in the Legal Department)
A lot of what they do is patent 'trolling' or lawyering up against their own staff (e.g. HR disputes)
Links 10/10/2025: US Judge Bars Attacks by ICE On Journalists and Protesters; “We Took The Freedom of Speech Away” Says the President
Links for the day
Slopwatch: Serial Sloppers, Google News Gifting Slopfarms, and Fake News/Plagiarism About "Linux"
Google itself is a slop pusher these days
Qualcomm, the New Owner of Arduino, Blasted for Its Software Patents Tax on 'Smartphones'
A lot of Qualcomm's patents are on software. We wrote about this in prior years.
XBox Layoffs Rumours, Downtime, and Criticism From XBox Co-Founder
"everyone is ditching the xbox."
Links 10/10/2025: Honoring The Legacy Of Robert Murray-Smith, Many Articles on the Hey Hi (AI) Bubble
Links for the day
Gemini Links 09/10/2025: October Gothic and Reading Middle Earth Role Playing; C and Ada
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, October 09, 2025
IRC logs for Thursday, October 09, 2025
Links 09/10/2025: Farewell to Jane Goodall, California Bans Algorithmic Price-Fixing
Links for the day
Gemini Links 09/10/2025: Lost Wages and a Saga Of Continuing To Use Palm PDAs
Links for the day
Richard Stallman's Talk in Helsinki is Done. Tomorrow Göteborg.
There are scarce details in Finnish about Dr. Stallman's talk
New XBox Leaks Probably Serve to Confirm XBox's Collapse (Many More Layoffs)
It's very much consistent with what many other sites have reported lately
The Slop Song
The train wreck marches on
LLM Slop/Advanced Plagiarism Flooding the Zone With Capital That Does Not Exist
Many publishers out there still participate in this bubble instead of calling it what it is
Links 09/10/2025: Sacked Microsoft Workers Make "Sackbird", IBM Taps CockroachDB for PostgreSQL
Links for the day
"Happy Hacking Day" Richard Stallman Talk This Afternoon (From 14:00 to 16:00) at Haaga-Helia University in Pasila
Richard Stallman in Helsinki, Finland
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, October 08, 2025
IRC logs for Wednesday, October 08, 2025
Links 09/10/2025: Impact of Microsoft Layoffs, More Data Breaches
Links for the day
Gemini Links 09/10/2025: Autumn Blues and C IRC Bot
Links for the day
Slopwatch Appreciated by Real Authors of GNU/Linux Articles
We do try to keep on top of those things
Upgraded R.R.R.R.R.R. Today
The Web of 2025 is full of garbage, not limited to slopfarms
Freedom From Proprietary Prisons
Forking always an option
IBM's Watson Died in 1956, Now Watson Dies Again
IBM is becoming just a reseller of GAFAM and other stuff
Slopwatch: LinuxSecurity, UbuntuPIT, and Google News
We've also just noticed more slop from UbuntuPIT
Microsoft Says That Constant Mass Layoffs Are Success, the Media Isn't Buying This Microsoft Narrative Anymore
If people in the media feel an obligation to repeat whatever lies Microsoft tells, what point will there be to the media?
Links 08/10/2025: "Mali Puts Free Speech on Trial" And Apple Enforces Dictatorship
Links for the day
Links 08/10/2025: ‘Death to Spotify’ and Law to Ban Loud Commercials on Streaming (Dis)Services
Links for the day
Links 08/10/2025: Real Innovation and Nina.chat is Dead
Links for the day
Links 08/10/2025: Y2K38 Bug is a Vulnerability, Chat Control in Europe a Threat
Links for the day
Microsoft Windows is No Longer an Operating System, It's Surveillance Project
Why is this even legal to preload on PCs outside the US?
How and Why Once-Legitimate Sites Turn Into Slopfarms
Many sites will go offline and many social control networks will shut down once they realise or even openly admit they spend money and time gardening a bunch of bots and slop
UbuntuPIT Became a Slopfarm and Gnoppix Tarnishes Its Own Brand With Slop
It fits all the characteristics of mildly-edited (if at all) slop
Slopwatch: Linux Journal and Other Slopfarms
GAFAM needs to go the way of the dodo
Gemini Links 08/10/2025: "Seek Seek Revolution" and Gradient Backgrounds
Links for the day
Qualcomm Arduino Takes Aim at Raspberry Pi
Qualcomm is a Microsoft partner
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, October 07, 2025
IRC logs for Tuesday, October 07, 2025
Stagnation of the Economy and What Free Software Can (or Could) Do For It
If your economic model is based on a pyramid of lies, it won't last very long
Social Control Media is Sinking
it would rightly seem like the era of centralised "social" sites (they're not social, they're about controlling the users) is ending, not overnight but gradually