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07.11.16

Will Battistelli’s Friend/Ally Lucy Neville-Rolfe Shamelessly Attack British Democracy and Push for UPC in Spite of Brexit?

Posted in Europe, Patents at 5:34 pm by Dr. Roy Schestowitz

When loyalty (to one’s powerful buddies) trumps logic and faithfulness to one’s country

EPLIT
EPLIT: All about money. Everyone’s money in their pockets.

Summary: EPLIT, the European Patent Litigators Association, wants a litigation-leaning (trigger-happy) UPC policy in spite of a referendum which puts that on hold if not kills it altogether

LAST month we wrote about Lucy Neville-Rolfe's remarks about the UPC. She doesn’t seem to care what the British public wants. She actively works for the interests of the microcosm she associates with. Some call her “Baroness” and given the “Robber Baron” concept, this might be an apt title.

Patent lawyers are, in very general teams, making money from patent wars that target not other patent lawyers but producing companies, i.e. scientists and producers, who then require patent lawyers to “defend” them. Patent lawyers have no personal products/services/agenda at stake; to them it’s like selling weapons to be funneled into a war in which they don’t participate (as soldiers).

Shelston IP, an Australian law firm whose staff acts like software patents lobbyists these days [1, 2], wrote about the Patent Prosecution Highway (PPH) which we mentioned here before in relation to Australia, Colombia (with the EPO) and in past years in relation to the US/USPTO [1, 2, 3]. What’s not to like when there’s “prosecution” at stake? This is, in essence, what the UPC is about. The C stands for “Court” because it’s presumed that litigation is both desirable and inevitable. That’s an expensive ‘product’ which patent lawyers ‘sell’, so they want more of it.

Now that UPC is on the rocks, as even some UPC proponents openly admit, there are efforts to work around the situation (we covered some before and showed Battistelli's personal role in them). Here is the latest:

A couple of weeks ago the IPKat published a paper from Prof. Dr. Winfried Tilmann of Hogan Lovells outlining a mechanism by which a post-Brexit UK might still participate in the Unitary Patent and Unified Patent Court. Other minds have also been addressing this issue, and so the IPKat is again delighted to publish this piece, describing a quite different approach, received from Univ.-Prof. Dr. Thomas Jaeger, LL.M. of Universität Wien (that is University of Vienna to our anglophone readers).

The Brexit vote of June 23rd sent shockwaves throughout both the EU and the UK. Some take the vote as proof of Charles de Gaulle’s age-old observation, that Britain simply does not fit into the EU: “[L’Angleterre] a dans tout son travail des habitudes et des traditions très marquées, très originales. Bref, la nature, la structure qui sont propres à l’Angleterre diffèrent profondément de celle des continentaux.” Others see it as the death knell to the EU and / or the UK as we know them.

Whatever the point of view, one thing is for sure: should Britain overcome its abrupt total loss of political leadership and should someone emerge eventually who is willing to formally notify the European Council of the intention to leave subsequent to Art. 50 (2) TEU, that would be the end of the Unitary Patent Package as originally intended.

Some of the interesting bits emanate from the comments. One person wrote that: “Additionally, a new UP and UPC package guaranteeing that English is the only “true text” for Spain, could also bring the language-obsessed Spaniards onboard. It would still not be fully satisfactory for them, but at least for Spain, English would be established as the only legal language for these patents.”

No, this is totally nonsense. Without English, UPC would be obsolete as many of the stakeholders would be from English-speaking countries or countries that don’t understand French and German (barely anyone there speaks those languages). Even the patent trolls which UPC threatens to invite require English. So who would English be for? The Irish? With Brexit, the conflict over languages would only deepen and threaten to drive Italy back to the opposition. Spain would then have rivalry with Italy and the whole appeal of the UPC decline considerably.

“Today,” wrote another person, “the European Patent Litigators Association (EPLIT) has urged UK government to ratify UPC Agreement as soon as possible” (direct link).

So the conspiracy of patent lawyers, or “Team UPC” as we habitually call it, is lobbying our government on UPC and guess who leads the charge? “EPLIT sent a letter to The Rt. Hon Baroness Lucy Neville-Rolfe,” it says, “Minister for Intellectual Property. With this letter EPLIT urges the UK government to ratify the UPC Agreement as soon as possible.”

Will Baroness Lucy Neville-Rolfe, the lapdog of Battistelli and his thugs, lead the charge for UPC in the UK or will she choose to respect the rule of law, common sense, and will of the people (not patent lawyers)?

The remainder of the comments seem to have come from UPC proponents. One of them says:

Sorry for the UK.

No need to be sorry. The UK doesn’t need UPC. It was never a gift at all.

Anyway, somthing will have to be done for the UPC agreement as the UK is mentionned in the annex. Removing the London section will be a renegociation (without UK) that will be difficult because of the NL and IT who may want a section.

This would take years.

Watch this optimism which wrongly assumes that Theresa May, who hasn’t a clue about patents (I spoke to her in length in the past and she doesn’t even get technology), will rush to deal with the UPC as though it’s the most urgent matter:

The U.K. will have a new PM by Wednesday apparently and she has stated that Brexit is Brexit. Hard to imagine that the UPC can sneak through parliament unnoticed (with summer recess almost upon us) and party conference time in September breaking it up further. Soon would only be possible in October I’d guess and by then Brexit may be up and running. Hard ball from some EU states may even risk the UK not being accepted for signing? Hasn’t Cameron already been excluded from some EU summit sessions? I wouldn’t be surprised if some states (looking at a court) might challenge it.
The author’s suggestion that minor reform may be the best (only?) option seems pragmatic and realistic.

There is no minor reform which is “pragmatic and realistic” if the UK (and thus London) leaves the EU. This is a patent lawyer’s fantasy. Watch others who keep trying to bypass the law and push for UPC even before Brexit, as if the UPC is somehow beneficial to the UK (it’s not, it’s just for some lawyers in London and their huge clients from other countries). To quote the latest comment:

A minor reform of the UPCA seems indeed the best option to deal with a Brexit. However, it would serve all parties if the reform (and the negotiations that go with it) would take place after the system has been set in motion. This means, that it would also be beneficial for the UK to ratify now and to negotiate a UPC-exit alongside the Brexit negotiations.
The advantages for all parties are:
– the system can already start as planned (spring 2017)
– the system can gain momentum in the coming years, while the UK is still in the EU (the new UK prime minister has indicated that Brexit should be done carefully, and thus slowly).
– the UK will have the advantage of the London seat of the UPC
– the UK will have the advantage that once the system is started they will be considered indispensible for the continuation of the system (they are already deemed to be indispensible before the system has started), which will improve their negotiation position.

This thus could be considered a win-win situation. Accordingly, I second the request of EPLIT to the UK government to ratify the UPCA.

Wanna bet this supporter of EPLIT is not actually a patent applicant/assignee but someone who profits from patent mess? UPC has been all about enabling a hijack of the whole system to the detriment of European SMEs (while hijacking their voices)?

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