02.03.17

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Team UPC Continues to be a Premier Source of Fake News About Unitary Patent in the United Kingdom

Posted in Deception, Europe, Patents at 9:41 am by Dr. Roy Schestowitz

Bristows LLP is just one of many in Team UPC, which has become like a cult

Keltie Fake News
Kat-lie or Kel-tie?

Summary: The peddling of lies regarding the prospects of the UPC, or the dissemination of “inevitability” claims (self-fulfilling prophecies tactic), cannot withstand scrutiny, as people who don’t lie for a living rightly point out

THE EPO we’re already accustomed to hear nothing but lies from; but a growing number of law firms, including some that are based in London, tarnish their reputation by making false predictions that are politically and financially (self gain) motivated. These false predictions — if not outright lies and blatant falsehoods — can cost their clients dearly, as these clients are being fooled if not lied to, e.g. regarding the 'benefits' of UPC to SMEs.

One source of rebuttal to these lies has been Dr. Ingve Björn Stjerna, a Certified Specialist for Intellectual Property Law in Düsseldorf. Florian Müller has just amended his article to say: “The author of this guest post has now published a new article on the recent political statements as regards a ratification of the UPCA in the United Kingdom and their legal implications.” In Twitter he called it out as well, as follows: “just added a small update at the end of the recent guest post on Europe’s Unified Patent court…”

This is about the UPC in the UK — merely a hypothetical/theoretical idea that is extremely unlikely to ever materialise. But if one listens to CIPA, a bunch of lobbyists (front group) for the patent microcosm in the UK, fake news are abundant.

This tweet from CIPA says: “Kevin Mooney tells our UPC Seminar the process will be smoother if the UK can ratify the Court Agreement before the Govt triggers Article 50″

Another says: “Kevin Mooney on the question: Can UK stay in UPC post-Brexit? Refers to Gordon/Pascoe opinion that there’s no legal/constitutional barrier”

They are merely expressing their wishes rather than what will actually happen. And law firms from the UK nonetheless repeat this nonsense as though it is fact. “According to Kevin Mooney at @TheCIPA meeting on Tuesday,” one of them wrote, “UK may be aiming to ratify UPC before Article 50 is triggered. #UPC #Brexit”

“That means by 9th March,” IAM added (IAM, for those who forgot or don’t know, was paid by the EPO’s PR agency to help set up pro-UPC events, supported explicitly by the EPO).

“UPC Agreement to be ratified in UK before Art. 50 is triggered,” one person told us “i.e. until early March…”

“New assessment regarding the intended UK ratification,” told us this person, was published this week with an English version [PDF] and the following summary in English (it’s also available in German). To quote:

The British ratification paradox,

Article on the recent political statements as regards a ratification of the UPCA in the United Kingdom and their legal implications (02/02/2017)

Most recently, statements with relevance for the ratification of the Agreement on a Unified Patent Court (“UPCA”) made by members of the British government caused astonishment. While the new British Minister of State for Intellectual Property, Joseph Johnson, underlined the ratification intent, Prime Minister Theresa May shortly afterwards, in her speech on the “Brexit” negotiations, defined a number of objectives which appear hardly reconcilable with such ratification. In this context, it is also of interest that, contrary to the political guidelines set by the previous Prime Minister Cameron and against the broad opposition of the professional circles, the CJEU can be expected to have gained an interpretation competence also in relation to material questions of unitary patent protection, as a consequence of the compromise in the dispute on former Art. 6 to 8 of the “unitary patent” Regulation. The following article describes the statements and their legal implications in more detail.

How long will people be gamed and manipulated by Team UPC with its fantasies? This isn’t the first time that the above author contradicts these false predictions and here is a new comment from IP Kat (“bye bye UK participation in the UPC”):

The Brexit White Paper makes an interesting read:
“We will bring an end to the jurisdiction of the CJEU in the UK”.

So bye bye UK participation in the UPC, then? Or might this not quite mean what it says? The subsequent sentence perhaps gives a clue.

“We will of course continue to honour our international commitments and follow international law”.

I guess that one could characterise the UPCA as “international law”, and so this perhaps leaves the government with some “wriggle room”. However, it will be interesting to see how (if at all) the government manages to “square the circle” where obeying international law (such as the UPCA) requires the CJEU to have jurisdiction in the UK.

Based upon my observations to date of UK politicians, I predict that the mutual incompatibility (with respect to e.g. the UPCA) between the two above-quoted statements will be handled in the usual manner. That is, the government won’t bother trying to explain itself. It will just be evasive and change the topic.

The same approach will be used to handle the question of how free trade with the EU can be achieved without submitting to common rules (and the jurisdiction of a court that interprets those rules)… especially as the proposed alternative (a dispute resolution mechanism that does not have direct effect in UK law) is very unlikely to be palatable to the other EU Member States.

We don’t expect the UPC to ever become a reality and as we wrote yesterday, neither do professionals in the area, based on a new poll/survey. We already wrote some long rebuttals to this a few months ago:

Remember that the person who promised ratification in the UK has since then been sacked or stepped down.

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