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06.13.17

In Spite of Censorship by IP Kat, Issues Associated With UPC Had Become Apparent, Even Before Germany Halted Ratification

Posted in Deception, Europe, Patents at 11:50 am by Dr. Roy Schestowitz

Related: Astoundingly, IP Kat Has Become a Leading Source of UPC and Battistelli Propaganda

Bristows EPO

Summary: IP Kat is allegedly still censoring comments whilst at the same time delivering promotional UPC puff pieces, notably but not only composed by Bristows staff, without even stating vested interests (disclosure of bias/agenda)

NOW that Germany cannot ratify the UPC, for various reasons we have already explained [1, 2, 3], we would like to take a look back (only a few days prior to this latest development) and show the mentality of brainwash which became so prevalent in some pro-trolls circles. People are being misled and fed misinformation, resulting in actions and decisions that harm them financially or at least mentally.

“People are being misled and fed misinformation, resulting in actions and decisions that harm them financially or at least mentally.”We already know that the EPO‘s management lies as a matter of routine and norm, but it’s saddening to see IP Kat joining that club. IP Kat even promotes the agenda of patent trolls and ends up sucking up to judges who open the door to patent trolls in the UK. This may soon happen again because IAM, which is paid by trolls, noted: “Back in April in the High Court in London, Justice Colin Birss issued the UK’s first-ever FRAND/SEP-related decision in the Unwired Planet v Huawei case. The detailed reasoning that Birss provided in his judgment, as well as the FRAND rates that he set out and his willingness to grant the NPE an injunction, attracted attention from dealmakers across the world – and offered out the prospect of the UK becoming a more favoured forum in which FRAND/SEP disputes might be decided.”

This is good for firms like Bristows, whose employee (and most prolific IP Kat blogger) Annsley Merelle Ward is being called out. As this one new comment put it, “you know how some people are trying to advance their careers these days, adoring judges as if they were some kind of popstars seems to be part of the story. Disgusting.”

“It’s somewhat sad that nowadays the comments in IP Kat are almost always more valuable than actual blog posts as comments — at least those that sneak through the thickening wall of censorship — help rebut the self-promotional nonsense in the blog posts.”Annsley Merelle Ward also expressed admiration for Microsoft’s patent extortionists after promoting their agenda in an event sponsored by them. We wrote about that earlier this year.

It’s somewhat sad that nowadays the comments in IP Kat are almost always more valuable than actual blog posts as comments — at least those that sneak through the thickening wall of censorship — help rebut the self-promotional nonsense in the blog posts. As we shall show later on, one UPC proponent has left IP Kat and another one appears to have just entered.

So, where do we stand on the UPC?

“…one UPC proponent has left IP Kat and another one appears to have just entered.”Prior to the news from Germany we saw several articles from lawyers’ sites, including “Unified Patent Court Start Date Delayed”, “Euro-court plans hit by further delays”, and “EU Unified Patent Court Won’t Open This Year,” so it looked pretty grim even without factoring Germany out. “Delay” implies inevitability, however, and we don’t think it’s merely a delay. As I put it in response to this tweet, the UPC is “not AT ALL inevitable. It’s a coup of corrupt lawyers and officials.”

It still is.

Found via one of the proponent of the UPC was this article from WIPR about the issues associated with CJEU and Brexit. To quote the relevant bits:

If the CJEU is seen as a significant component of the UPC system the UK may prefer to withdraw from it, but in reality how involved might the CJEU be, asks Lorna Brazell of Osborne Clarke.

The role of the Court of Justice of the European Union (CJEU) in the Unified Patent Court (UPC) might seem an arcane concern when jurisprudence on patent matters has been relatively sparse for the CJEU’s first 60 years of operation.

In recent years the court has seen an endless stream of references from the European Union Intellectual Property Office in relation to administrative challenges to decisions to grant or refuse trademarks or designs, and it is currently grappling with the protection of copyright in the digital environment.

But since Europe’s relatively harmonised patent law derives not from the EU but from the separate European Patent Convention, the CJEU’s interventions to date have been limited to the interplay between patent rights and the freedom of movement of goods or competition law.

The question may, however, be crucial to the continuation of the UPC and unitary patent system, once the UK has left the EU in 2019.

Who said it will ever get started though? These are loaded statements and misleading assumptions. Watch how certain Team UPC is that it’s going to get its way. It’s in fact so certain that it feels compelled to simply delete comments of people whom it does not agree with!

More censorship of UPC criticism at IP Kat was flagged a few days ago. To quote:

Why is the author of this post so reluctant to allow comments referencing the paper at http://bitly.com/2r1ZQdI on the Gordon/Pascoe Opinion and its implications for the topic of UPCA compatibility with EU law, as it was raised here by Proof of the Pudding?

Mysteriously, two previous comments have not yet made it to the comments section. Why is the author so eagerly blocking any mention of this assessment?

And here is the reply:

Stay on Earth and Proof of the Pudding:

You both point out problems coming from the current wording of the UPCA. No-one has suggested that there are none. So Gordon and Pascoe were asked about that, and about what changes would be needed to overcome the problems. They gave a list in their paragraphs 104-109, and they discussed how those changes could be implemented from paragraph 110 onwards.

Note for example the subtle interplay between the amendments suggested to Articles 1 and 21. These would amend the statement in Article 1 that the UPC was a court common to European Union Member States – it would just be common to the contracting states of the UPCA. And Article 21 would substitute an obligation on the UPC to cooperate with the CJEU as any national court of an EU Member State does.

So rather than relying on being part of the institutional legal order of an EU Member State, the UPC would instead be obliged to cooperate as though it was. See G&P paragraph 102 (which does nevertheless acknowledge that the CJEU’s reasoning is opaque).

As you say, there is some debate as to whether the CJEU could accept referrals from such a revised UPC. Gordon and Pascoe noted in paragraphs 85-88 that the CJEU can accept referrals from other non-EU tribunals. Interestingly, they quoted Opinion 1/09 which acknowledges this. An example is the European Common Aviation Area Agreement, under which non-EU tribunals apply EU law.

However, G&P believed that there would still need to be an international agreement between the UK and the EU to allow the CJEU to accept referrals from the UPC, and suggested this could be dealt with as part of the Brexit deal (paragraph 107).

The next comment then says that the UPC Agreement may not at all be workable:

Tim – thanks again for your comments.

Whilst your comments are certainly illuminating in some respects, they leave me a little bit confused in other respects.

Are you suggesting that the “problems” with the current UPC Agreement are that it does not permit:
(a) the participation of non-EU Member States; or
(b) the UPC to make preliminary references to the CJEU?

As far as I can see, it has to be one or the other. That is, the UPC as currently constituted is either:
(1) part of the national legal order of EU Member States (thus having the ability to make references to the CJEU, but not the ability to accommodate non-EU Member States); or
(2) not part of that national legal order (thus enabling the participation of non-EU Member States but not enabling the UPC to make references to the CJEU).

Which do you think it is?

I cannot see any logical way that the current UPC Agreement can be workable if the answer is option (2). Indeed, would that not suggest that it would be plain irresponsible for the Member States to ratify the agreement?

I think that we need to be very careful here when it comes to the question of whether the UPC has the ability to make preliminary references to the CJEU. This is because that ability is a matter of fundamental legal substance and not form. That is, the UPC cannot be granted that ability merely by writing it into the Agreement. There needs to be more than this, namely conformity of the entire Agreement (and the composition of its Member States) with the relevant provisions of EU law.

In this respect, comparisons with the ECAA are a bit deceiving. This is because the European Community was (in addition to nation states) a signatory to that Agreement. We are most definitely not in that situation with regard to the current UPC Agreement: hence, Article 267 TFEU really is all that can currently be relied upon.

Censorship is again being brought up in the next comment, which speaks of “mysterious “technical glitches” that seem to abound these days, often for comments expressing a certain position.”

Thank you for making my comment public, I desist from asking where the previous ones have gone. They also may have fallen victim to the mysterious “technical glitches” that seem to abound these days, often for comments expressing a certain position.

As to the discussion, it is, depending on the perspective, either amusing or dreadful to see some people arguing based on the Gordon/Pascoe Opinion (GPO) as if it had any kind of authority. Please note that this is an interpretation of what its authors think the legal situation is/could be, and not even a convincing one.

Of course, the GPO was commissioned for exactly this purpose, namely for creating a baseline for the discussion to follow and for drawing people’s attention away from the legal situation that was widely accepted prior to the Brexit incident, as sticking with it would make a UK participation in the UPCA at least very difficult. Even the GPO can only in part avoid the problems caused by Brexit, at the price of relying on an understanding of CJEU Opinion 1/09 that is wishful thinking at best while at the same time, and this is the point touched upon by Proof of the Pudding, lending support to the notion that the UPCA as it stands (still) violates EU law.

Frankly, looking at the style of argumentation applied in the GPO, not to mention its repeated formal/linguistic flaws, I would be surprised if a QC was involved in this beyond simply allowing his name to be put on it. I understand the strains many members of the legal profession are under as regards the UPC and the desires they have, but trying to substitute an objective legal analysis for an obviously biased, inconsistent and poorly written opinion that has been paid for by law firms and certain circles of the major industry and that appears to derive its authority mainly from the fact that it bears the name of a renowned barrister amply demonstrates the level of desperation meanwhile reached in certain circles.

Looking at another thread, here is an analogy for UPC and Brexit:

In the United States, there have been numerous attempts to reconstitute the Ninth Circuit Court of Appeals, and all of them have failed. In fact, the politicians who make the effort to redraw the 9th Circuit’s boundaries inevitably end up badly embarrassed by professional or personal scandals. Some go so far as to joke that there is a curse of the 9th Circuit.

I am beginning to wonder if the UPC is not similarly cursed. First BREXIT, now this. It is as if the universe does not want a pan-European patent court.

The bottom line is, when comments do manage to sneak past the ‘wall’, voices of reasons become visible. Bristows have been deleting and thus suppressing such voices in at least two blogs. It’s not just Annsley Merelle Ward but also her colleague Brian Cordery (Bristows). We cannot afford to live in a world where one side’s positions simply get discarded by deletion, as the moderator is not at all neutral. It’s a coup.

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