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02.02.17

New WIPR Survey and Other Data Points Suggest That the Unitary Patent (UPC) is Dead, at Least in the UK

Posted in Europe, Patents at 8:44 am by Dr. Roy Schestowitz

Without the United Kingdom — let’s remind ourselves again — there is no UPC (in its currently-envisioned form)

UPC Dead

Summary: The UPC has suffered enough blows from quite a few major European countries and even legal professionals in the UK no longer believe that it will ever see the light of day

THE UPC is stuck. The EPO has not even mentioned the UPC in a long while. The last time the British government mentioned it was months ago and since then the person behind the move got sacked or stepped down. As a reminder, here is what we wrote at the time:

A new WIPR survey (30-01-2017) says: “Readers say May’s statement means UK leaving UPC”

Here are the details:

Readers responding to WIPR’s recent survey have agreed that UK Prime Minister Theresa May has sent a strong message that the UK will look to leave the Unified Patent Court (UPC) as part of her Brexit plan.

On January 18, WIPR reported on May’s 12-step plan that the UK government will use for negotiating Brexit terms. She said that the UK will not “seek to hold on to bits of membership as we leave”.

This sparked concerns that the UK may seek to leave the UPC after Brexit.

In November last year, Baroness Neville-Rolfe, former UK Minister of State for Intellectual Property, announced that the UK will implement the unitary patent and UPC.

On January 16, the UPC preparatory committee announced that the UPC is due to become operational in December 2017.

Responding to WIPR’s latest survey, 61% of readers agreed that May’s statement sent a strong message that the UK will leave the UPC after Brexit.

Readers had varying responses to the question.

Writing about the above, FFII’s Benjamin Henrion told me that “the hack is to leave after joining, so that the UPC can run anyway.” He later added: “The UK hack is to ratify the UPC so that it can run ASAP, then leave it eventually…”

It would only further destabilise the UPC and it would not work. What if the UPC got ‘orphaned’ because of London-based firms, courts, and British judges? It would never fly. The UPC as we know it (just a concept) is doomed; they’ll probably just start a new idea from scratch, perhaps with a new name, other host nations (courts) and so on. Remember that prior to the UPC they had several other projects and they all failed. How many people even remember the days of “EU patent”, “Community patent” and more? Our predictions about these were always correct. Under the UPC, according to this new report, judges are “40% from Germany, 16% each from the UK and France…”

That’s yet another reason for the UK to dump the UPC. It’s an unfair ratio which grossly benefits the Germans. Need we even recall the appalling discrimination against everything British at the EPO except the language (recruitment of Brits is down by 80%)? Almost all the top-level management at the EPO is French and German, except perhaps that thug from Croatia (who faces many criminal charges). Here is how IP Kat put it yesterday:

Stefan Luginbühl presented on the latest developments in European patent law, notably the Unitary Patent and Unified Patent Court (UPC). To make it short, nobody’s blinking so far, the UPC system is expected to come into force January 2017. Germany’s parliament is expected to approve ratification in spring, but the ratification document will not be submitted until the UK has ratified. The preparatory committee has received 840 applications for the positions as judges at the UPC (40% from Germany, 16% each from the UK and France), among them all the well-known patent judges of Europe. It was pointed out during the discussion that the Agreement on a Unified Patent Court contains no exit provision – should the UK actually ratify, it is unclear how it could leave should it want to (or have to) once it is leaving the EU.

Tilman Müller-Stoy gave an outline of the procedural rules of the UPC with a focus on the rules of evidence. Points of discussion were the affidavits and the obligation to produce evidence favouring the other side. Affidavits must be submitted with a statement of the witness that he is aware of his obligation to tell the truth and of his liability under applicable national law in the event of any breach of this obligation – the consensus being that the applicable law is the law of the place of the local division where the affidavit is submitted, not the law where the witness resides. It is an open question what happens if the law at the place of the local division does not provide for sanctions for false written witness statements because such statements are unknown in the national law. A hearing of the witness in person must be explicitely requested. On the production of evidence, a party may be obliged to disclose evidence in its possession, provided that the requested items of evidence are reasonably specified (R 170.3, 190). The only sanction that can be imposed for non-compliance with a production order seems to be adverse inference. Whether this is a sharp or blunt instrument depends on how this will be handled in practice.

Read the first comment there:

“the UPC system is expected to come into force January 2017″

Did you mean December 2017?

Regardless, I am fascinated by the comments on the lack of an exit provision in the UPC. Is it really the case that “pro-UPC” attorneys cannot see the elephant in the room, namely that Article 2b and 2c of the UPCA together make it impossible for the provisions of that Agreement (at least in its current form) to continue to apply to the UK?

Carrying on regardless is only an option if you are prepared to crash and burn at a later date… when those disadvantaged by a UPC judgement inevitably question its enforceability (and/or compliance with EU law). Pretending (or assuming) that everything will be OK therefore amounts to nothing more than a reckless form of wilful blindness.

Remember that Team UPC told us that the UPC would start in “2015″, then “2016″, then “2017″… well, now these people says “2018″ (“I meant January 2018. January 2017 is definitely wrong”). They’ve lost credibility with their fake news. It’s almost always a “real soon now” and Dr. Ingve Björn Stjerna agrees with us that it's about manipulating/fooling politicians.

Don’t believe anything that Team UPC says anymore. Their track record on truth is absolutely appalling and there’s nothing they won’t say to advance their agenda. They even posted fake (non-existent) job advertisements. We caught them in a lie that may constitute more than just an ethical breach.

“EPC52 exceptions all share abstractness criteria,” Henrion wrote in another context, and the “US should just copy the UPC without the as such provision.”

Well, the US is now distancing itself from much of the world, Europe included, so the idea of copying anything from Europe seems almost far-fetched.

The following person says s/he has “to come to the conclusion that UK cannot stay in the UPC after Brexit [and] you do not even have to have studied law” to know it. Here is the full comment:

I fully support Proof of the pudding

Whilst it understandable that UK law firms would like UK to stay in the UPC in spite of Brexit, it is amazing that an official of the EPO comes up with such a stupid statement, implying that UK could stay in the UPC after Brexit.

It should be clear for every sound person that the UPC is intimately linked with the EU and the CJEU. Deleting this essential feature ends up in an intermediate generalisation, and the person skilled in the art receives a different information after the amendment. In other words we are in presence of unallowable added subject-matter.

Wait and see what the CJEU will do then. One does not have to look into a crystal ball to guess: rip it to pieces. And then. All for nothing!

In order to come to the conclusion that UK cannot stay in the UPC after Brexit, you do not even have to have studied law. Just read the text of the UPCA with a will to understand it, not to misunderstand it.

There might not be an exit clause, but the exit is not to be avoided for any EU contracting state leaving the EU. The same applies to all statements to the effect that non-EU member states may join the UPC, once the UK has left the EU. Why not before then? Has anybody ever heard of decision 1/09? All this gobbledygook is wishful thinking at its best!

One could also bet that Germany might not submit the ratification document even if the UK has ratified. I cannot see German politicians gambling with their industry. Bringing into force a legal construction with such a weak foundation is anything but good for non-UK industry in general, and German industry in particular. By the way, what is UK industry? There are less European patent applications from UK (2%) than from Switzerland or the Netherlands (4% each). Lets put things in perspective.

We all know that the President of the EPO wants UK to ratify as quickly as possible and stay in the UPC, but even without wanting to offend a very touchy boss, a more careful way of expression should be expected from an official representative of the EPO.

Also noteworthy is the next comment:

I think the BGH’S Problem and Solution Approach is flawed, unfair and deflates under pressure. Can we have a comment from a person who litigates at the BGH, about the discrepancy between the EPO’s robust, tried and tested Problem and Solution Approach and the dodgy one that the BGH stubbornly clings to?

Can we have a comment what it is in the EPO’s Approach that it cannot bring itself to swallow?

Perhaps it is just the impossibility of a real judge of the Supreme Court conceding that a mere Patent Office could out-think his colleague judges at that Supreme Court.

This actually relates more to BGH than to UPC and in our next post we shall cover the relevance of it to the EPO’s monopoly in Europe. It’s time to end it. The EPO, if it has the burden of proof, no longer justifies this supposedly benevolent monopoly.

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