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09.11.17

“The Constitutional Problems Linked to the UPC are Far From Being Minor”

Posted in Europe, Patents at 4:53 am by Dr. Roy Schestowitz

Summary: The situation is dire for the Unitary Patent in two of the most important participating countries

WHILE waiting to see if the German legal system will permit input (other than from the Federal Government, the German Bar Association, and EPLAW, the European Patent Lawyers Association) we observe comments about the UPC, including the typical lies from EPO management, which sets up dedicated “events” that are actually lobbying opportunities for the UPC, drowning out the signal (or facts) with noise and jingoism.

Last night somebody said that “one realises that the constitutional problems linked to the UPC are far from being minor.” Here is the comment in full:

Not a word about the UPC in the position paper of the EC relating to Brexit. A UP is manifestly not an “Intellectual property right having unitary character within the Union”, as the “Enhanced cooperation” does not apply to all member states.

The Unitary Patent is also not a right delivered by, or has has been
submitted before an Union body in accordance with Union law, as the EPO is anything but a EU institution.

The more one thinks about this, the more one realises that the constitutional problems linked to the UPC are far from being minor. It is hight time to look at them.

Let’s hope that the German Constitutional Court thinks about it, and forwards a question to the CJEU. Decisions of the CJEU can sometime be qualified of political, see the dismissal of the Spanish complaint, but here more fundamental aspects are at stake.

It’s one of two similar but not identical comments. The latter said: “Does certainty mean we should forget the UPC? Not a word about the UPC in the document.”

Here’s the full comment from IP Kat (not the site’s authorship, which is a CIPA-affiliated UPC booster, but a comment):

Certainty is the biggest problem to be solved when UK is leaving the EU.

Does certainty means we should forget the UPC?

Not a word about the UPC in the document. It is manifestly not an “Intellectual property right having unitary character within the Union”, as the “Enhanced cooperation” does not apply to all member states.

The Unitary Patent is also not a right delivered by, or has has been
submitted before an Union body in accordance with Union law, as the EPO is anything but a EU institution.

The more one thinks about this, the more one realises that the constitutional problems linked to the UPC are far from being minor. It is hight time to look at them.

“The UPC is effectively dead,” I told Dr. Luke McDonagh about this tweet of his, “but nobody wants to say it.”

“Bristows also helped propel this illusion of progress in Germany when people effectively cheated at 1AM in the morning.”He wrote: “The EU position paper on unitary IP rights ignores the Unitary Patent Regulation. Is that because UPs don’t exist… yet?”

It probably will never exist, but watch the comments from UPC boosters. They refuse to let go. “It’s because everyone has forgotten about it,” wrote of of these boosters, “2012 was a long time ago.”

He then said: “Well, the UK still seems to be progressing it. The SI on privileges and immunities for Scotland was just published. But as for Germany…”

“Further attacks (discrediting attempts) on the complaint in Germany are certainly on their way.”Well, Bristows claims “progress” in Scotland, citing something pretty irrelevant (us usual). We wrote about it last week. Bristows also helped propel this illusion of progress in Germany when people effectively cheated at 1AM in the morning.

When one lives inside the UPC echo chamber facts become “alternative facts”. I discussed this further with him last night. Well, in spite of his UPC advocacy (back when he was in IP Kat and participated in UPC echo chamber events), he seems to acknowledge that Germany remains a barrier to the UPC. And I don’t expect Team UPC to just give up any time soon. Further attacks (discrediting attempts) on the complaint in Germany are certainly on their way. Some behind the scenes, no doubt.

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