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09.13.17

Latest Attempts to Blow Air Into the Sails of the Sinking Unitary Patent (UPC)

Posted in Europe, Patents at 2:39 am by Dr. Roy Schestowitz

Making up news about the UPC out of stuff that says nothing about it!

Self-fulfilling prophecy
Reference: Self-fulfilling prophecy

Summary: A survey of the latest media mentions and interpretations of the UPC, which don’t quite stack up when compared to reality

Techrights will, perhaps some time later this week, publish more material about the UPC complaint in Germany. It’s our understanding that the FFII wishes to submit input of its own to courts, adding its voice to that of the EPO and the patent microcosm (including Team UPC).

“After IP Kat‘s admission that the European Commission isn’t pursing the UPC anymore (its position paper conspicuously does not even mention it ) Managing UP, IAM, and IP Watch jump at the opportunity to mention the UPC anyway.”If the German courts foolishly decide to listen only to law firms (regarding the UPC), that will say a lot about their own biases if not mischief. It’ll say or show that they’re not open to input from technology companies and scientists (i.e. those impacted most by the outcome). In other words, more of the same in the UPC saga; it was the same all along…

Looking at the EPO’s Twitter account, yesterday it was promoting the UPC again, in an act of misleading propaganda or a sort of veiled lobbying: “Have you already downloaded a copy of the “Unitary Patent Guide”?”

“The UPC is NOT happening,” I told them, so “stop promoting things that don’t exist, EPO.”

“CJEU does not have jurisdiction to decide on the legality of the UPCA at this point,” a new comment said yesterday, citing that old Gordon & Pascoe opinion. To quote:

The EU was a party to the planned EPLA but is not a party to the UPCA- hence the difference in whether an opinion was sought in advance.

As set out in the Gordon & Pascoe opinion in relation to question 5 (Point 127) https://www.bristowsupc.com/assets/files/counsel_s%20opinion%20on%20effect%20of%20brexit%20on%20upc,%2012%20sept%202016.pdf

and seemingly by the EU Commission, the CJEU does not have jurisdiction to decide on the legality of the UPCA at this point.

The CJEU also noted limits on their jurisdiction in relation the the UPCA in C-146/13 point 101

The UPC, “like the EPO [would be] exempt from EU labour and data protection law,” somebody wrote in the next comment.

Immunity? Again? No oversight? Here we go again; some people carry on pretending that Brexit is not a problem:

Point 90 of C-146/13 seems to be quite clear:
“First, the Unified Patent Court does not form part of the institutional and judicial system of the European Union.”

So it is settled that the UPC is not an EU Institution.

This would also seem to imply that it is – like the EPO – exempt from EU labour and data protection law. Or have I missed something?

Meanwhile, Bristows tries hard to give an illusion of progress, speaking of “allowing for the final preparations for the start of the UPC system, such as recruitment of judges…”

This was halted in the UK and in Germany also. So why bother looking elsewhere, at economies a faction of that size? After IP Kat‘s admission that the European Commission isn’t pursing the UPC anymore (its position paper conspicuously does not even mention it) Managing IP, IAM, and IP Watch jump at the opportunity to mention the UPC anyway. How predictable!

“The EPO, as usual, says what it wants to believe rather than what is true.”Managing IP (or should that be Managing UP, as in Managing Unitary Patent Events?) wrote this yesterday afternoon, IAM said that UPC “is not yet up and running” (and likely NEVER will be), and IP Watch oddly enough chose to quote lies from the the EPO’s management regarding the matter (mentioning the EPO regarding UPC in relation to a report that says nothing about the UPC). They also quote the Chartered Institute of Patent Attorneys (CIPA), one of the biggest pushers of the UPC.

Here is what IAM’s chief editor (strongly pro-UPC) said:

The Unified Patent Court agreement is not yet up and running (and thanks to Brexit and a recent court challenge in Germany may not be for quite a while) and, in any case, is not structured as an EU body, while current patent rights are either national or issued by the European Patent Office, which is not an EU institution.

And from IP Watch:

The situation seems to be slightly different for the unitary patent system. According to the European Patent Office, “The long-term participation of the UK in the Unitary Patent system is legally possible. However, this is a political decision to be taken by the EU, its remaining Member States and the UK.”

It’s barely possible. The EPO, as usual, says what it wants to believe rather than what is true. Giving the coup of Team Battistelli (UPC heavyweights), is it even worth quoting the above?

Wow, so much talk about the UPC. In reports about a report/paper that mentions the UPC not even once! We expected this when we wrote about the paper last week. If Merkel and/or May say “oops” this week, perhaps Team UPC will interpret that as them saying “ups”, thus expressing commitment to the UPC no matter what.

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