06.17.17

Gemini version available ♊︎

Appalling Press Coverage Regarding the Unitary Patent (UPC)

Posted in Deception, Europe, Patents at 3:03 pm by Dr. Roy Schestowitz

Dave Croston in Financial Director
One example of plenty more fake news about the UPC (e.g. [1, 2, 3]), courtesy of those who stand to profit from legal Armageddon

Summary: How the media has lied (and keeps lying) about the UPC, which the European public neither needs nor wants, putting aside serious constitutional issues that are associated with the UPC

PUTTING ASIDE the issue of UPC censorship/deletionism in the mediaa subject we explored here before — we continue to see a lot of EPO-leaning spin in the wake of Germany’s barrier to the UPC [1, 2, 3]. It’s more obnoxious than anything that the same people who conspired in secret to create this mess are now dominating the media, hijacking blogs, deleting comments, and telling off people who contradict or debunk their propaganda.

Watch this new piece titled “Germany delay probably not the end of the UPC — a piece which extensively quotes people with financial stake in the UPC. It quotes Team UPC’s Wouter Pors a lot, for example: “Wouter Pors, head of Bird & Bird’s IP practice in the Netherlands, explained that the Bundesverfassungsgericht has the authority to issue an order blocking the president from signing in a law.”

Where are the opponents of the UPC? They were not even approached for a comment. There is zero balance there. People who want to profit using the UPC (at the expense of everybody else) refuse to believe it’s dead; that’s hardly surprising. Where are the voice of reasons though? Totally omitted from this article, as usual…

Looking around for more coverage of this, we are finding little less than sites controlled if not owned by patent law firms. In fact, patent firms that actively wage a coup (to replace the current system with the UPC) are dominating all the blogs and some responded to the breakdown with potentially paid-for placements like these [1, 2] from William Fry and CMS Hasche Sigle.

One former Kat said that “it could be” the end of the UPC, but that’s just because he tends to be more honest than most and he occasionally links to us regarding the UPC (albeit he does not agree with the relatively abrasive tone).

Almost all UPC opponents prefer to remain anonymous and it’s easy to see why. They don’t want to receive abuse. A German complaint was filed anonymously, but we think we know who filed it. Character assassination would ensue of the identity of the complainant was known.

Now that Germany must decide whether the UPC is constitutional at all (it’s not, for reasons we covered here before), one person said he expects a “decision in perhaps 6 or 12 months.”

That’s a very long time. To quote in full: “A few people have asked about timing. From what I gather the Court proceedings have already been expedited, which means a decision in perhaps 6 or 12 months. Still before the date of Brexit but getting uncomfortably close.”

“Remember that Spain raised this very complaint (incompatibility of the UPCA with EU law),” said another comment. It’s part of an ongoing discussion (in uncensored comments) about the legality of the UPC (or absence thereof). Reproduced below are the relevant comments in case IP Kat (i.e. someone like Bristows) decides to ‘vanish’ them: [G&P refers to Gordon and Pascoe]

Firstly, the current UPC Agreement is the only one currently on the table. There is no amended Agreement, and there may never be.

Secondly, if the current Agreement does not comply with EU law (because, as argued by G&P, it is incapable of creating a court that forms “part of the national legal order” of EU Member States), then it would be irresponsible to bring it into force… as it would be unworkable from the off.

Also, just because the UPCA Member States are all currently EU Member States, it does not necessarily follow that the UPC (under the current UPCA) will form “part of the national legal order” of the EU Member States. Indeed, it would be absurd if the status of the Member States was the only relevant factor.

For example, why should the UK’s departure from the EU suddenly remove the UPC from the national legal order of other EU Member States? Conversely, why should the mere fact that all signatories are EU Member States mean that an international agreement is capable of creating a court forming part of the national legal order of those states? Does there not need to be something more than just a common status of the participants to properly “embed” the UPC in the national legal order?

Remember that Spain raised this very complaint (incompatibility of the UPCA with EU law) in one of their cases – and that complaint was only dismissed because it was inadmissible, not because it was wrong.

“Secondly, if the current Agreement does not comply with EU law (because, as argued by G&P, it is incapable of creating a court that forms “part of the national legal order” of EU Member States), then it would be irresponsible to bring it into force… as it would be unworkable from the off.”

Indeed it would, if that were correct. Except that this is not quite what G&P are saying. There is more than one way to provide the safeguards required in order to comply with EU law.

One is if the UPC itself were part of the national legal order of the contracting EU member states. Article 267 TFEU and the rest of EU law would then apply directly, with no need to say more. But it isn’t, as you point out. As stated by G&P it’s an international agreement, and the fact that it is common to the contracting EU member states doesn’t change that.

So the way in which the current UPCA provides the necessary safeguards is by stating explicitly that the UPC is common to a number of EU Member States (Article 1). And by imposing obligations on the UPC as a court common to those EU Member States (Articles 20-23). Including an obligation to make references to the CJEU in accordance with Article 267. (See G&P paragraph 15).

This is not a direct application of EU law (including Article 267 TFEU), but instead it hard-codes the same obligations into the UPC itself.

The other side of the coin (currently) is that the CJEU automatically has jurisdiction to receive references and decide questions of EU law, because the UPC is common to a number of EU Member States, and the CJEU has jurisdiction over all those Member States. No need to hard-code anything.

However, this current form of the UPCA needs amendment after Brexit. G&P’s proposed amendments keep the hard-coded obligations, but adapt them to the new situation that one of the contracting states is no longer an EU Member State. As previously, this is not a direct application of Article 267 etc.

Unfortunately the CJEU would no longer have jurisdiction automatically, as its jurisdiction is limited to EU Member States (G&P paragraphs 80, 84, 85). This is why G&P say that a separate agreement is needed, with the EU as a party. The CJEU’s jurisdiction also now needs hard-coding.

One minor point: is it not a little odd that there are references in Articles 21 and 22 UPCA that only seem to make sense if the UPC does form part of the national legal order of the EU MSs?

For example:
“as part of their judicial system” (Art. 21);
“as any national court”; and
“in accordance with Union law concerning non-contractual liability of Member States for damage caused by their national courts breaching Union law”.

It appears to me that the drafters of the UPCA tried hard to create a “Benelux-type” court that the CJEU’s Opinion 1/09 indicated was OK. But now it seems necessary to argue that the drafters were unsuccessful in their efforts, and that the UPC complies with EU law by way of a novel mechanism.

I can at least concede that the UPC is very obviously different from the Benelux Court. This is not least because the UPC is an alternative to the national courts, rather than a court that is “plugged in” to the national legal systems by way of appeal / remittance links.

However, I have my doubts over whether the proposed novel mechanism for complying with Article 267 TFEU would work. That is, given that the CJEU can only accept references from “any court or tribunal of a Member State”, is there not a risk that the CJEU – despite the safeguards that you mention – would find that the UPC is not a court “of a Member State”, and thereby refuse to accept preliminary references from that court?

Of course, I do not rule out the possibility that the CJEU will find a reason why the current UPC set-up is compliant with EU law. However, as the CJEU has not yet given the system the “thumbs up”, we cannot be certain that they will do. In this respect, do you not worry that the arguments in G&P’s opinion could perhaps undermine a crucial point for EU law compliance (namely the ability for the UPC, as a court “of a Member State” to make references to the CJEU)?

More importantly, do you not worry about the risks of “going live” with a system that is not guaranteed to be compliant with EU law and where there are no guarantees that the UK can remain in that system post-Brexit? I understand the temptation to press on given that we are now so close to realising a long-held wish amongst certain sections of the IP community in Europe. Nevertheless, given the lack of guarantees on important points (especially when there are lingering, and well-reasoned doubts on those points that cannot yet be dismissed), I cannot help thinking that pressing on regardless generates huge – and frankly unacceptable – uncertainty for rights holders (and interested 3rd parties).

What we advise readers is, ignore pieces written by firms with stake in the UPC, so-called ‘reports’ (puff pieces/PR) that extensively quote those firms, and stacked panels that include liars from the EPO. Sadly, nowadays comments about the UPC are being deleted from numerous prominent blogs, but those comments which miraculously remain almost unequivocally voice pessimism about the UPC. Professionals in the field evidently don't believe what Team UPC is saying and there are surveys that show that.

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

Decor ᶃ Gemini Space

Below is a Web proxy. We recommend getting a Gemini client/browser.

Black/white/grey bullet button This post is also available in Gemini over at this address (requires a Gemini client/browser to open).

Decor ✐ Cross-references

Black/white/grey bullet button Pages that cross-reference this one, if any exist, are listed below or will be listed below over time.

Decor ▢ Respond and Discuss

Black/white/grey bullet button If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

DecorWhat Else is New


  1. Links 8/12/2021: Linux 5.15.7 Out, Linux Mint 20.3 is Near

    Links for the day



  2. Links 8/12/2021: Zorin OS 16 Milestone and Calculate Linux 22 Released; Kubernetes 1.23

    Links for the day



  3. A Call for Sources and Whistleblowers From Microsoft's GitHub

    Remarks on our publications from this morning and a call for more leakers and whistleblowers, who know GitHub better than anybody else (including lots of fools who still outsource all of their hard labour to Microsoft through GitHub)



  4. [Teaser] Rape is Not a Joke

    Having just uploaded a police report, we’re starting to move the ongoing series to the next phase, which will still be — for the most part — weekly installments on Mondays (for months to come)



  5. [Teaser] Meet Microsoft’s Chief Architect of GitHub Copilot, Balabhadra (Alex) Graveley

    Alex Graveley, a serial abuser, has been protected by Microsoft; what does that say about Microsoft and about Nat Friedman, GitHub’s CEO whom Alex considers his "best friend"? Stay tuned as we have plenty more to show



  6. IRC Proceedings: Tuesday, December 07, 2021

    IRC logs for Tuesday, December 07, 2021



  7. Links 8/12/2021: FreeBSD 12.3, EasyOS 3.1.13, and WordPress 5.9 Beta 2

    Links for the day



  8. [Meme] EU Assurances

    The EPO‘s staff cannot be blamed for losing patience as elected public representatives completely fail to do their job (with few exceptions)



  9. Clare Daly (GUE/NGL) Does What Every Public Official in Europe Should Have Done About EPO Shenanigans

    There’s another (new) push to hold the EPO accountable, seeing that the overseers clearly do not do their job and instead cover up the abuses



  10. Links 7/12/2021: Firefox 96 Beta and Fedora 37 Abandons ARMv7

    Links for the day



  11. Links 7/12/2021: Plasma Mobile Gear 21.12 and Tails 4.25

    Links for the day



  12. All IRC Logs Now Available as GemText Over Gemini Protocol

    Today we've completed the transition from plain text over gemini:// to GemText over gemini:// for IRC logs



  13. IRC Proceedings: Monday, December 06, 2021

    IRC logs for Monday, December 06, 2021



  14. [Meme] Rowing to the Bottom of the Ocean

    The EPO‘s Steve Rowan (VP1) is failing EPO staff and sort of “firing” workers during times of crisis (not at all a crisis to the EPO’s coffers)



  15. EPO Gradually Reduced to 'Fee Collection Agency' Which Eliminates Its Very Own Staff

    Mr. Redundancies and Mr. Cloud are outsourcing EPO jobs to Microsoft and Serco as if the EPO is an American corporation, providing no comfort to long-serving EPO staff



  16. Linux Foundation 2021 Annual Report Made on an Apple Mac Using Proprietary Software

    Yes, you’re reading this correctly. They still reject both “Linux” and “Open Source” (no dogfooding). This annual report is badly compressed; each page of the PDF is, on average, almost a megabyte in size (58.8 MB for a report of this scale is unreasonable and discriminates against people in countries with slow Internet connections); notice how they’re milking the brand in the first page (straight after the cover page, the 1991 ‘creation myth’, ignoring GNU); remember that this foundation is named after a trademark which is not even its own!



  17. Links 7/12/2021: OpenIndiana Hipster 2021.10 and AppStream 0.15

    Links for the day



  18. Microsoft “Defender” Pretender Attacks Random Software That Uses NSIS for installation; “Super Duper Secure Mode” for Edge is a Laugh

    Guest post by Ryan, reprinted with permission



  19. Links 6/12/2021: LibreOffice Maintenance Releases, Firefox 95 Finalised

    Links for the day



  20. “Wintel” “Secure” uEFI Firmware Used to Store Persistent Malware, and Security Theater Boot is Worthless

    Guest post by Ryan, reprinted with permission



  21. No Linux Foundation IRS Disclosures Since 2018

    The publicly-available records or IRS information about the Linux Foundation is suspiciously behind; compared to other organisations with a "tax-exempt" status the Linux Foundation is one year behind already



  22. Jim Zemlin Has Deleted All of His Tweets

    The Linux Foundation‘s Jim Zemlin seems to have become rather publicity-shy (screenshots above are self-explanatory; latest snapshot), but years ago he could not contain his excitement about Microsoft, which he said was "loved" by what it was attacking. Days ago it became apparent that Microsoft’s patent troll is still attacking Linux with patents and Zemlin’s decision to appoint Microsoft as the At-Large Director (in effect bossing Linus Torvalds) at the ‘Linux’ Foundation’s Board of Directors is already backfiring. She not only gets her whole salary from Microsoft but also allegedly protects sexual predators who assault women… by hiring them despite repeated warnings; if the leadership of the ‘Linux’ Foundation protects sexual predators who strangle women (even paying them a salary and giving them management positions), how can the ‘Linux’ Foundation ever claim to represent inclusion and diversity?



  23. Microsoft GitHub Exposé — Part IX — Microsoft's Chief Architect of GitHub Copilot Sought to be Arrested One Day After Techrights Article About Him

    Balabhadra (Alex) Graveley has warrant for his arrest, albeit only after a lot of harm and damage had already been done (to multiple people) and Microsoft started paying him



  24. The Committee on Patent Law (PLC) Informed About Overlooked Issues “Which Might Have a Bearing on the Validity of EPO Patents.”

    In a publication circulated or prepared last week the Central Staff Committee (CSC) of the EPO explains a situation never explored in so-called 'media' (the very little that's left of it)



  25. Links 6/12/2021: HowTos and Patents

    Links for the day



  26. IRC Proceedings: Sunday, December 05, 2021

    IRC logs for Sunday, December 05, 2021



  27. Gemini Space/Protocol: Taking IRC Logs to the Next Level

    Tonight we begin the migration to GemText for our daily IRC logs, having already made them available over gemini://



  28. Links 6/12/2021: Gnuastro 0.16 and Linux 5.16 RC4

    Links for the day



  29. Links 5/12/2021: Touchpad Gestures in XWayland

    Links for the day



  30. Society Needs to Take Back Computing, Data, and Networks

    Why GemText needs to become 'the new HTML' (but remain very simple) in order for cyberspace to be taken away from state-connected and military-funded corporations that spy on people and abuse society at large


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