THE EPO scandals, based on statements made by EPO spokespeople, have a lot to do with the UPC. As Dr. Glyn Moody put it earlier this year (page 6 of a very long article):
When asked by Ars, the EPO's spokesperson mentioned the imminent arrival of the unitary patent system as an important reason for revising the EPO's internal rules: "the EPO needs to be fit to efficiently handle all tasks as the authority appointed to deliver and administrate Unitary patents once the scheme enters into force, which could already be this year. Its importance is likely to increase both at European and international level, and that needs to be reflected in our capacity to respond to new demands for our services."
The EPO's central role in the unitary patent system means that an organisation that is not subject to EU rules or laws will wield a key power: to grant or refuse EU-wide patents on inventions. The EPO will receive 50 percent of the patent renewal fees charged for unitary patents, with the rest being shared out among the other EU countries, just as EPO earnings are today.
As a consequence, the EPO will once more have an incentive to issue as many patents as possible in order to boost its revenue from renewal fees—a problem that besets the current EPO system, as discussed above. The double danger here is that the introduction of the unitary patent, implemented with a more accommodating attitude to approving applications, could bring with it both US-style patent trolls, and US-style patenting.
Patent trolls are almost unknown in the EU because it is currently impossible to obtain an EU-wide patent. Without it, patent trolls would have to apply for patents in multiple jurisdictions before suing their victims in each of them separately, increasing the cost of carrying out this kind of bullying, and multiplying the risk that they would lose somewhere and see their bluff called. The new unitary patent is specifically designed to make it easy to obtain patents across the EU—something that patent trolls will relish.
We do need to know how patent strategists, litigators, portfolio managers and investors think, and their insights can be valuable. But we also need a lot more firm information before we can obtain a clearer view as to whether this carefully-planned and extensively revised scheme for litigating Europe's patents is better, the same as or worse than the patchwork of national courts that preceded it.
"Well, it's time to abolish or mothball and shelve the UPC rather than pretend it’s inevitable and “prepare” or learn it."He is paid by companies that prop up the system and strive for patent maximalism, so how objective is he really? He literally helps set up events for patent trolls, in which their reputation is being collectivity laundered.
But here's why we still have 'beef' with Wild, putting aside his dangerous betrayal of sources. Shortly after IAM's latest EPO propaganda that in spite of the EPO's decline tries to pretend everything is great (and the EPO later conveniently cited this) we have more bogus claims, or lies, to put it more bluntly. Were SMEs surveyed by IAM? No. There's the usual selection bias (MIP too is now surveying only the choir, ignoring more than 99% of the population) and empty assertions from Wild about SMEs. "The two most immediate risks," he says to IP Kat (or Neil Wilkof says based on a discussion with him), "are: the U.S. Supreme Court cases going against patent owners, so reinforcing the anti-patentee narrative in the US and making US patents even less attractive; and the UK voting to leave the EU, so delaying the UPC by two or three years at a minimum, or maybe even killing it off permanently. A lot of people are placing big bets on the UPC. A delay, let alone de facto abandonment, is likely to cause a significant negative market reaction."
"They must be thinking of predators and opportunists from across the Atlantic, not legitimate European businesses, maybe just lawyers' firms. "No, no, no. They must be thinking of predators and opportunists from across the Atlantic, not legitimate European businesses, maybe just lawyers' firms.
It is an established fact that SMEs are against the UPC (they say so themselves) but watch how Wild, writing in his own site today (with "SMEs 4 the UPC" right there in the headline), puts together completely nonsensical prose which acts more like reality-distortion, not facts passage. To quote one part:
SME advance - It’s rare to find anyone running a European SME confident enough to talk in detail about patents, let alone willing to do so. That’s what made the contribution of Rubén Bonet, president and CEO of Barcelona-based Fractus, so welcome in this morning’s “Europe’s chance to lead” plenary session. The company is a designer, manufacturer and licensor of optimised antennas, and was spun out of the Universitat Autònoma de Barcelona in the late 1990s. It holds over 200 patents and applications covering 50 inventions, and is no stranger to the courts in the US and elsewhere. That, of course, makes it an exception. As Bonet acknowledged, most SMEs do not engage with the patent system, regarding it as a waste of time and money. The UPC, though, could change that, he said. The key would be to maintain current quality standards at the EPO and to ensure that the new court regime also functions to the highest standards. With such quality you have predictability and with that you have the ability not only to pan long term, but also to attract investment. There is nothing more disastrous for a tech-based SME, Bonet observed, than to be awarded a patent, to build a business around it and then to have it invalidated a few years further down the line. The delivery of high-quality patents makes that scenario far less likely. In terms of UPC predictability, Bonet said, it will be important to get eh damages regime right and also to ensure the availability of injunctions. With these things in place, plus high-quality grants, he stated, litigation would actually less likely as parties would have a much clearer idea of what the outcome of going to court would be. All of this would make SMEs with European patent portfolios more attractive to VCs and may even make it easier to secure money from the banks against the assets. What’s not to like from an SME perspective? (JW)
From UPC to UIPC - It’s no great secret that the European Patent office was not best pleased when the Office for Harmonisation in the Internal Market (OHIM), which grants Community trademark and design rights, was rebranded the EU IP Office earlier this year. It looked like a bit of a land grab, given that even though the agency has no patent remit, patents are very much part of the IP family. At the very least, it was argued in Munich, the name change might cause confusion and give an opportunity for unscrupulous operators to fleece unsuspecting punters for a few Euros. With that in mind, it was interesting to hear Margot Fröhlinger – the EPO’s Principal Director of Patent Law and Multilateral Affairs and a 2016 inductee into the IP Hall of Fame – talk about her hopes for the Unified Patent Court during her induction speech. Fröhlinger has spent long years, first at the European Commission and latterly at the EPO, helping to drive the UPC agreement and it was her fervent personal hope, she said, that once it is up and running the court’s remit should eventually be extended to cover trademarks, designs and other forms of EU-wide IP rights – a UIPC, if you like. There is no doubt that such a view would not be terribly popular in OHIM headquarters down the coast from Barcelona in Alicante; but although there would be a number of practical issues to resolve before such a move could take place it does make some sense for a continent that for a long time has seen merit in specialised IP dispute resolution fora. (JW)