04.05.17

IP Kat is Helping Battistelli by Lobbying for the Unitary Patent (UPC) and Spreading Falsehoods

Posted in Deception, Europe, Patents at 4:54 am by Dr. Roy Schestowitz

Team UPC firms inside IP Kat are doing marketing (for their employers)

Battistelli and Tokarski

Summary: For the third time in less than a week, IP Kat, composed by law firms that stand to gain from the UPC (litigation galore), tries to compel British politicians to ratify and allow devastation to British businesses

THE EPO, in our humble assessment, is actually at risk from the UPC; examiners in particular (not just boards) may be made redundant by it, for reasons we explained twice in the past week. Even EPO insiders — albeit not all of them — agree with us on that. UPC ‘reforms’ aren’t just about a bunch of courts; it’s a systemic overhaul that warps Europe into 'litigation central' at the expense of examinations (judges and juries doing what examiners would otherwise do, at a lower expense to defendants).

“UPC ‘reforms’ aren’t just about a bunch of courts; it’s a systemic overhaul that warps Europe into ‘litigation central’ at the expense of examinations (judges and juries doing what examiners would otherwise do, at a lower expense to defendants).”Thankfully, at least for us in the UK, time is running out for the UPC. Tokarski and Battistelli can say whatever they want (Battistelli just keeps lying about it), but ratification is anything but trivial and it is definitely not inevitable. Today we learned about plans to initiate a demonstration against it, after a petition attracted many signatures, including dozens from CEOs. According to this pro-UPC blog, in the UK “necessary ratification must take place before the next Competitiveness Council meeting on 29th May.”

But with Brexit uncertainties it’s anything but possible/feasible. We don’t expect that to happen. Here is the relevant bit:

Mr Tokarsky explained that everything is ready at technical level. However participating member states need to ratify the Protocol on the provisional application of the Agreement on the Unified Patent Court. Mr Tokarsky particularly insisted for the states that already have parliamentary approval to actually ratify the Protocol. He also highlighted that the necessary ratification must take place before the next Competitiveness Council meeting on 29th May. Indeed the UPC requires a minimum of six months to get ready and become operational.

We can be sure that Team UPC will kick into gear and make it seem both possible and desirable to the UK. When they speak of the “UK” they speak only about their employer, typically a law firm that profits from litigation.

“CJEU is a very big barrier here.”Luke McDonagh has tweeted, “UK can participate in #UPC post-Brexit, but will it? What role for CJEU? Darren Smyth gives his informed view…”

Well, for the second time in about a week, Mr. Smyth, having promoted this beast (in UPC echo chamber/lobbying events), does more lobbying at IP Kat. Rhetorical question as headline? Check.

He quotes this from the highest authority about the CJEU in the UK: “Once we have left the EU, the UK Parliament (and, as appropriate, the devolved legislatures) will be free to pass its own legislation.”

“…after spending years wheeling this beastly Trojan horse and publishing bogus job advertisements it would leave them looking like crooks and traitors.”He then repeats a statement from Lucy, who is no longer in her job (she lasted only several months before vanishing).

CJEU is a very big barrier here. David Davis is repeatedly being quoted/cited as saying that the UK would not be subjected to ‘governance’ by CJEU, so that’s an immediate deal-breaking statement/stance for the UPC. Should Team UPC not lay down its weapons and simply acknowledge that it’s over? No, after spending years wheeling this beastly Trojan horse and publishing bogus job advertisements it would leave them looking like crooks and traitors. So instead they try to make their own delusional prophecy come true.

“Saving us the effort, readers of the blog have already beaten us to it with rebuttals.”We are sad to see IP Kat repeatedly being exploited for this kind of lobbying. Battistelli must be very proud of IP Kat these days. His sanctions against IP Kat changed its tune and now we’re being confronted with UPC puff pieces almost every week, sometimes several times per week.

Saving us the effort, readers of the blog have already beaten us to it with rebuttals. Smyth, for example, got caught resorting to that same old shameless spin. “I am massively impressed by the mental gymnastics from the author,” said one commenter. Here is the full comment:

I am massively impressed by the mental gymnastics from the author. I particularly enjoy the part where the sentence from the white paper is quoted:

“The Government has been clear that in leaving the EU we will bring an end to the jurisdiction of the CJEU in the UK.”

Then immediately reinterpreted (and rephrased) to meet the author’s preferred conclusion:

“What it has said is that domestic courts should not be bound by the CJEU.”

Unfortunately, this just doesn’t follow. Nowhere in the statement of the government does it limit the exception to the jurisdiction of the CJEU to “domestic courts”. Rather the statement is that “we will bring an end to the jurisdiction of the CJEU in the UK”. This statement simply isn’t compatible with UK membership of the UPC. Take the very simple example of a UK person or company infringing a unitary patent by actions that are only carried out in the UK. In that case the UK will still very much be under the jurisdiction of the CJEU.

Another comment spoke about CJEU:

That’s too narrow an interpretation. The quote says “… the jurisdiction of the CJEU in the UK”. That means the ability of the CJEU to apply law that has an effect on matters taking place in the UK. In making a decision on for example, a matter of infringement of a European patent in respect the UK, the UPC is absolutely acting as a domestic court and thus the CJEU is exercising jurisdiction in the UK. There is an inconsistency here and the more likely explanation is that the government is in a mess, not that it has a cunning plan.

Another noteworthy comment (not from Team UPC):

Despite the opinion from Gordon and Pascoe, it is still far from certain that the UK and remain in the UPC post-Brexit.

A lynchpin of the Gordon and Pascoe opinion is the conclusion in the following quote.
If the UPC were truly part of the Union legal order, it would already be subject to these obligations without them needing to be spelled out in the Agreement. Whilst Article 1 of the UPCA and Article 71a of the Brussels Regulation designate the UPC as a “court common to a number of Member States”, we do not consider that such secondary legislation is capable of converting the UPC’s fundamental status as an international court into that of a court which is part of the national legal order

However, I have serious doubts about the legitimacy of that conclusion.

The main focus of the CJEU’s Opinion 1/09 was upon the question of supremacy of EU law (and the mechanisms for ensuring that supremacy). The main mechanisms by which supremacy of EU law is enforced in a particular country are membership of the EU and the ability of national courts to make references to the CJEU.

The first of these mechanisms will of course no longer apply to the UK post-Brexit.

The trouble for Gordon and Pascoe is that, if their conclusion is correct, then the second mechanism will disappear as well.

Think about it: how could an “international court” refer questions to the CJEU if that court is not a court common to the EU Member States?

Remember that the ability to refer questions to the CJEU is restricted by Article 267 TFEU to “any court or tribunal of a Member State“.

If I am missing something, then I would be glad to hear what it is. Otherwise, it seems that the UK most definitely cannot participate in the UPC post-Brexit… unless, of course, no one is bothered about compliance of the UPC Agreement with EU law.

This point also provides an answer to Darren’s question regarding how frequently the UPC will refer questions to the CJEU. That is, the ability of UPC to refer questions to the CJEU presupposes that the UPC will be bound by the provisions of Article 267 TFEU. The upshot of this is that the UPC Court of Appeal will have no choice but to refer questions to the CJEU when the decision of the Court hinges upon a provision of EU legislation that has no clear and unambiguous interpretation.

I suspect that references will be very common indeed. This is primarily because I have not met anyone yet who can provide me with definitive answers as to how Article 5(3) of Regulation 1257/2012 will work in practice. To be frank, my view is that anyone who thinks that this will all be clear-cut has obviously not thought things through!

“Dear UK lawyers,” said the following comment, “the reality is that Brexit has thrown you out of a system you hoped to make a lot of money with” (right on the money).

Here is the full comment:

The comment looks interesting and it looks at first sight, indeed quite convincing. The UPC not being a UK court, but an international court, UK can stay in the UPC after Brexit.

The contrary seems true for different reasons:

1) the UPC is strictly reserved to member states of the EU. There is not much which can be said more. Any attempt to change this , for instance by the Administrative Committee amending the UPCA, is doomed to fail as any possible amendments can only have the aim to bring the UPCA in line with an international treaty relating to patents or Union law. Not only the preamble makes reference to Union Law, but as well the Art. 5, 20, 21, 27,31, 32, 84 and 85 (the list does not pretend to be exhaustive) refer directly or indirectly to Union Law. And a non-EU member can participate? Sorry but the time for April’s fool jokes is over.

2) Even if for the sake of argument one could accept that the UPC is not a UK court, its decisions will have a direct impact in UK, once a judgement of the UPC is to be enforced in UK, or a judgement of the local court or the London section of the Central Division will have to be enforced, whether in UK or abroad. Once UK leaves the EU Brussels 1 will not any longer applicable to judgements of the UPC in UK. Up to now, there is nothing to give the impression that this point has been taken seriously by the proponents of the stay of the UK in the UPC post-Brexit.

3) The comparison between EP patents and the UP Patents is not convincing at all. The EPO grants patents, and stops there. The EPC does not say anything else, beside the fact that, in principle, the reasons for nullity in front of a court in a member state of the EPC are the same as the grounds of opposition. The aim of the EPC was never to go any further. The UPC deals with the fate of a patent granted, like presently any other court in a member state of the EPC.

4) That no patentee is obliged to use the UPC is OK as long as there is an opt out possibility, that is for at least 7 years, and then to a maximum of 14 years. After this time any EP patent be it with or without unitary effect will end before the UPC for all member states of the UPC, i.e. for all member states of the EU having ratified. This argument is very weak.

I cannot remember if it was in this blog or in another one, that there was talk of having the cake and eating it.

Dear UK lawyers, the reality is that Brexit has thrown you out of a system you hoped to make a lot of money with. It is sad for you, but unavoidable and any contortions trying to be in with being in are in vain.

“Nice try to claim the UPC is an international court but it is an EU court,” said another comment about this lobbying effort.

Patentees in the Uk owuld only have the choice if the UK government gives it to them. Allowing one section of society to be under the jurisdiction of the EU seems contrary to the government position.

Aside from that, not all patentees are UK citizens so the UK surely cannot allow non-UK-resident patentees the right to obtain UK property rights that are not subject to the jurisdiction of the UK courts?

Nice try to claim the UPC is an international court but it is an EU court, which is why it is under the CJEU. We could try and get round many hurdles by creating ‘international bodies’ in this way, but I doubt it will wash. The EMA for example may be one such body we could do with not leaving.

And in response to that:

It is “under” the CJEU in the same way as the English courts and UK Supreme Court are at present. Are you suggesting that the English Court are EU courts even when deciding on national law. Do you consider the Miller Art 50 judgement to be the work of an “EU” court. Seems a strange catogorisation to me.

“The Brits have been painstakingly building this folly for many years,” said the following (yes, a lot of Team UPC is based in London), “and now someone else on their own side (the British public) has put a bomb under it, at the eleventh hour, just before the grand opening.”

Good.

Reading all of this reminds me of the final scene of “The Bridge On The River Kwai”.

“Madness……just madness!”

The Brits have been painstakingly building this folly for many years and now someone else on their own side (the British public) has put a bomb under it, at the eleventh hour, just before the grand opening.

The last thing anyone needs is for the train to leave the station and make its way on to the bridge….

Here is a claim that CJEU is merely a “red herring both legally and politically.” But how is that so? The situation here is rather simple; can a court that does not even speak English tell a company in Britain (post-Brexit) what to do? That would make as much sense as a Chinese or a US court ordering an injunction inside the UK. Here is the full comment:

The CJEU’s role is mostly a red herring both legally and politically. The UPC clearly cant be issuing remedies to be enforced in EU countries that are contrary to EU law and the CJEU is there to prevent that. Unless an invention relates to the Biotech directive the CJEU will have very little influence on what happens can or cant be done in the UK.

The political angle is also a overplayed- Carswell’s early day motion didn’t get any other backers. What happens to the UK in the UPC will be wrapped up with the big Art 50 deal. When the Art 50 deal is completed -what happens to the UPC isn’t going to be a primary talking point with those that hate the EU.

Carswell is a Conservative who moved to UKIP and left UKIP (he is now an independent). Trying to cast anti-UPC as anti-EU is as dishonest as it gets. I, for example, am against the UPC for practical reasons and I am also pro-EU for practical reasons. One can cogently be both. A lot of UPC foes can say the same about themselves.

“I, for example, am against the UPC for practical reasons and I am also pro-EU for practical reasons.”The one point which is easier to agree on is, UPC will barely be on the agenda in Brexit negotiations. It will likely be abandoned or thrown/fall by the wayside, as much higher priorities exist.

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. Links 30/11/2020: GhostBSD 20.11.28, Nitrux 1.3.5, Linux 5.10 RC6, GNOME Circle, Microsoft Collapses Again in Web Server Share

    Links for the day



  2. Alternatives to the World Wide Web, to HTML, to HTTP/S, and to the Internet

    Looking around the Web (yes, the Web) for alternatives to the Web (and the stack underneath the Web), we're finding that IPFS is mature and robust enough for our needs



  3. Management of the EPO Dragged to the International Labour Organisation Over Its Assault on the Right to Strike

    Opinion on strikes challenged by the Central Staff Committee of Europe's second-largest organisation; if strike rights are almost abolished there, what hope is there for the rest of Europe?



  4. [Meme] Management of the EPO Cannot Let the Staff Breathe or Smell Freedom

    Working for the EPO means giving up on one’s human rights; that’s the sort of conclusion many workers have reached



  5. “ViCo” is Nothing New (Not Even the Acronym), Done on 9/11 Last Year, Been Possible as Long as the EPO Has Existed

    Contrary to what many people are led to believe, the EPO isn't embracing innovation, it's just embracing COVID-19 and leveraging lock-downs (de facto house arrest to some) to impose an illegal practice on EPO staff and EPO stakeholders



  6. Release: Early Letters and Documents About Financial Hoax Disguised as EPO 'Study'

    It was over a year ago that staff representation at the EPO expressed concerns about what would later enrage workers — seeing that based on unscientific fabrications the EPO would take away what had been promised to them



  7. IRC Proceedings: Sunday, November 29, 2020

    IRC logs for Sunday, November 29, 2020



  8. Managing IP: Puff Pieces Galore for the EPO's Dictatorship (Complete With Buzzwords and PR Stunts)

    By giving a platform to notorious patent trolls and ‘engaging’ with the EPO‘s dictator (whom only 3% of EPO staff trusts) Managing IP is sort of giving away its real agenda, which isn’t journalism but conducting or assisting misinformation campaigns



  9. Links 29/11/2020: Genode OS Framework 20.11, Linux 5.11 Kernel Changes, and Latest in KDE Itinerary

    Links for the day



  10. Sincere Thoughts About Outreachy

    Outreachy's role in the Free software community and inclusion in the FSF's High Priority Projects, as seen from the eyes of a female coder from a minority group; she used to work for the Free Software Foundation (FSF) and she expresses concerns about what Outreachy has become



  11. Free Software Under Tyranny of Codes of Conduct as the Western Equivalent of Blasphemy Law (Corporations as the New Religion/Sponsors as Deities)

    The free speech crisis in Free software communities has enabled expulsion of opinionated people whose opinions truly matter; in their place we now have companies that bomb people, sometimes even kidnapping children and sterilising women because nothing says “Ethics” like naked fascism and corporate domination everywhere



  12. Release: 4 More Documents and Letters About the Financial Siege at Europe's Second-Largest Institution

    Documents disputing the accuracy of the "hoax" from António Campinos and the Mercers



  13. One Year Ago: The Last EPO Demonstration Before COVID-19

    About a year ago staff of the EPO apparently had its last protest (in front of the Isar building) before staff got ‘herded’ into homes, where workers became more isolated and even illegally spied on



  14. [Meme] Unified Patent Court Agreement (UPCA) is an Attack on Europe and the European Businesses That Don't Do Litigation

    Litigation lawyers and patent zealots want to set Europe ablaze with legislation that they themselves crafted; thankfully, however, they face constitutional obstacles, no matter how many politicians they bamboozle and buy



  15. Reasons EPO Staff Decided to Go on Strike This Year (Before or Until Coronavirus Prevented It)

    An year-old letter from the Staff Union of the European Patent Office (SUEPO) to the President of the EPO; 7 reasons for going on strike are enumerated



  16. EPO Can Save Money by “Dropping Events Like the Inventor of the Year, Reducing the Number of Managers, Throwing Less Money at Consultants or Bringing the Boards of Appeal Back into Office Buildings.”

    Constructive suggestions from EPO staff, made just over a year ago and assembled into a letter to their EPO colleagues



  17. The Real Fate of the UPC 'Stunt' in Germany Will be Known Next Month (or Next Year) and There Are Substantial Constitutional Barriers in the Way

    Contrary to what Team UPC wants people to think, UPC(A) isn’t a “done deal” in Germany; they never actually addressed the substance of complaints and with help from Benoît Battistelli‘s friends in the Commission they’re just attempting a blatant coup



  18. Microsoft Removes Free Software From GitHub Again, This Time for Motion Picture Association (MPA)

    GitHub is proving to be more of a censorship site than a code-sharing site; with the GitHub takeover Microsoft became a 'censorship police' or force of occupation against its ideological competition; just weeks after the YouTube-DL debacle and further take-downs seeking to 'protect' broken DRM schemes (by banning code) we can see that Microsoft isn't defending developers at all; it's just protecting the interests of MPA, RIAA and other Biden circles from the interests of the general population, which sometimes circumvents perfectly circumventable 'DRM' schemes



  19. IRC Proceedings: Saturday, November 28, 2020

    IRC logs for Saturday, November 28, 2020



  20. Help Make Techrights (and Other Technology-Centric Sites) More Robust to Censorship by Setting Up More IPFS Nodes

    We’re trying to improve the site’s availability (ensuring it can never be offline) and make it more censorship-resistant; people who adopt IPFS can make that happen while tackling the “bloated Web” and “centralised Internet” issues — all at the same time



  21. Microsoft Loves Linux and Android Apps Running on Windows Instead of GNU/Linux and Android Devices

    Microsoft loves Linux, they say; but as Microsoft's former VP James Allchin put it: "If you're going to kill someone there isn't much reason to get all worked up about it and angry -- you just pull the trigger [...] We need to smile at Novell while we pull the trigger."



  22. Links 28/11/2020: RenderDoc 1.11, GNOME 40 Scrolling Horizontally

    Links for the day



  23. Nine Documents About the Financial Siege Against EPO Staff (Past, Present, and Future)

    Today we release dozens of pages of letters and documents (internal to Europe's second-largest institution); they all focus on the betrayal and skulduggery, crushing staff in spite of what was originally promised (and what workers actually signed up for)



  24. EPO Senior Management (Cabal) “Essentially Deaf to the Proposals From Staff Representatives.”

    Representatives of EPO staff feel like the management of the EPO is "deaf" and uncaring; there's hardly any meaningful progress (or none whatsoever) when it comes to truly honest dialogue with real participation



  25. EPO Management, Led by António Campinos, Attempted to Stifle or Prevent Staff From Being Surveyed

    Battistelli's cabal, which covers up a lot of fraud and corruption, is attempting to prevent the staff from expressing an opinion (for insiders and perhaps outsiders to assess) because things are really bad and autocratic measures are seen as necessary to keep the lid on issues/abuses



  26. The European Patent Office's Central Staff Committee: Office Cannot Recruit Fit-for-Purpose Patent Examiners Anymore

    One third of EPO recruits are 'locals' (Germans), 0.2% are Swiss, 1% Scandinavian; the EPO as an employer became unattractive and it's unable to attract the staff it needs (as was projected and planned when the EPC was agreed upon)



  27. IRC Proceedings: Friday, November 27, 2020

    IRC logs for Friday, November 27, 2020



  28. Links 27/11/2020: Jolla is 7, Diffoscope 162, MNT Reform Production

    Links for the day



  29. The Time Coronavirus Helped EPO Management Prevent Staff From Protesting and Going on Strike (March 26th)

    "In view of the spreading of the New Corona Virus, the planned General Assemblies have to be cancelled," the Staff Union of the European Patent Office (SUEPO) wrote in the wake of the crisis across Europe back in March (weeks ahead of a planned strike)



  30. Guarding Your Privacy With E2EE: Primer

    "As with all security, there is assumed risk no matter how careful you are. There are no security guarantees but that doesn't mean you shouldn't try."


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts