09.15.17

Gemini version available ♊︎

The UPC Fantasy is Going Nowhere as Complaints and Paperwork Pile Up

Posted in Europe, Patents at 7:25 am by Dr. Roy Schestowitz

Battistelli prematurely shot them at the back

Battistellius

Summary: Many submissions and complaints about the Unitary Patent have time to arrive before the end of October as a decision on the matter seems as distant as 2018

What Techrights was about to reveal last week (but did not, for bureaucratic reasons) is now public information. The UPC faces many barriers in Germany. What started with a single complaint is now dozens of texts, which are definitely going to take a long time to process. Don’t expect any judgment on the matter before next year.

As usual, there’s a vast difference between reality and what Team UPC is saying. Watch this tweet from Kluwer’s Christine Robben‏, who ensures her employer’s UPC agenda will move along smoothly (it won’t). Team UPC and its affiliates wish us to believe that the UPC will come very soon (for them to ruin the real industry, for profit, using a lot of litigation). Here is “UPCtracker” again (another UPC booster) quoting from the puff piece: “Should the [constitutional] complaint be dismissed, I think the system is that robust that this delay will not hinder its establishment.”

Nonsense. There are many more barriers to it. “If another complain[t] is tabled in another country different from UK/DE/FR,” Benjamin Henrion, “would that also slow it down?”

Obviously!

Henrion has already made a complaint in his own country, Belgium. And I know for a fact that here in the UK we have enough connections in the software industry to produce a powerful complaint (shall the UPC agenda make any progress, which is unlikely).

The FFII too is about to intervene. Here is a message sent not too long ago by Henrion:

Consultation of third parties by the Court regarding the Unitary Patent complaint

Dear Mdme Lang,

I am writing to you following information that was published yesterday regarding the ongoing analysis by the Constitution Court of the pending complaint on the Unitary Patent ratification:

This article mentions the Court is consulting 3 associations for advices:

“JUVE reports that recipients of the complaint include the Federal Government, the German Bar Association (Deutscher Anwaltverein, DAV) and EPLAW (European Patent Lawyers Association).”

Do you know if this consultation is also opened to other third parties?

Our association FFII eV has looked at filing a similar complain, but we have lost track of the deadlines to do so.

In Belgium, I have personally filed a similar complaint, but this was rejected because of a delay misunderstanding.

I have understood that some fundamental questions, notably the language one and automated non-legally binding transations to german, are not addressed by this complaint, so we would like to see the court addressing this question, among others.

If you could clarify what would be the procedure to file observations, we would be very interested to do so.

There’s lots more stuff like this on the way, yet Kluwer produces propaganda pieces titled as selective quotes (as usual) to give a false impression of inevitability. Kluwer now quotes a Belgian judge, Sam Granata, as saying “Future judges of the Unified Patent Court will be very motivated to make the court work…”

This is just Team UPC chatting with Team UPC to tell us how wonderful UPC would be. It’s all just an echo chamber. It’s nonsense.

There’s no “future judges”; there’s not even a UPC and hiring has been halted. Forget about these “future judges” — they’re hypothetical!

To quote from the Kluwer piece:

In the first period of functioning of the Unified Patent Court, the judge-rapporteur – who has important powers in the new system – should as much as possible revert issues to the panel of judges as a whole. This is beneficial for the system and can prevent forum shopping, according to the Belgian judge Sam Granata*. He has been involved for years in the creation of the Unified Patent Court (UPC) and is co-author of the book ‘The Unitary Patent and the Unified Patent Court’, which was published earlier this month by Wolters Kluwer. In an interview with Kluwer IP Law, he also discusses the consequences of the Brexit and the German Constitutional complaint.

So Granata “has been involved for years in the creation of the Unified Patent Court”… how objective!

They ask him about his own creation.

Moving on a bit, Juve’s Mathieu Klos wrote a couple of days ago: “These institutions also received a request for comment by German Constitutional Court: Bundesrat, all state governments, BRAK [] Total number of parties to comment on CCC is 22. Further requests are likely: @EPOorg? Quick decision in Karlsruhe pretty unlikely…”

It can take a long time. There’s even more on the way. The EPO should be disregarded by the courts as it’s corrupt. Watch how, on the same day, the EPO yet again promoted software patents, in defiance of the European authorities and the EPC. To make matters worse, the EPO linked to Watchtroll, a site of patent radicals. This is madness!

On the same day the EPO also boasted about Battistelli sending ‘independent’ judges to exile — as punishment/retaliation — so that he can reduce patent quality (software patents come to mind).

“Find out the currently planned date when the Boards of Appeal will start operations at the new location,” the EPO said. Haar. How poetic a move! Why doesn’t Battistelli just declare all the judges medically/mentally unfit and then tosses away all their past rulings?

The EPO appeal boards have generally been one of our favourite elements in the EPO (like PTAB in the US) because they help ensure patent quality. This is why Battistelli wants to destroy them. They help highlight a decline in patent quality, thereby refuting his lies spectacularly. A couple of days ago the following article was published:

Synthon says EPO appeal board has revoked Copaxone API patent

[...]

The Dutch drug firm made the claim today, stating “the Technical Board of Appeal (TBA) of the European Patent Office revoked the last of Teva’s three glatiramer so-called HBr patents which claimed an allegedly improved process for the synthesis of glatiramer acetate.”

[...]

The EPO was unable to confirm the revocation decision ahead of publication.

Teva did not respond to a request for comment.

That’s just patent quality control in action.

“The EPO’s Board of Appeal recently revoked a patent,” said another new article, this one from Boult Wade Tennant’s Jennifer O’Farrell. To quote:

The EPO’s Board of Appeal recently revoked a patent covering Bristol-Myers Squibb’s blockbuster oncology drug dasatinib (marketed as Sprycel®). This decision (T488/16) provides valuable guidance into avoiding the pitfalls, and exploiting third party vulnerabilities, associated with the issue of plausibility. Plausibility is central to a number of statutory requirements to patentability at the EPO including inventive step, sufficiency and industrial applicability. For example, if the technical effect of an invention is not rendered plausible by the patent application, the technical effect may not be considered in the assessment of inventive step. Further, post-filed data may only be used to support a technical effect which was made plausible in the application as filed.

The present decision relates to Bristol-Myers Squibb’s now revoked patent EP1169038. The granted patent comprised a single independent claim defined by a Markush formula which covered an extremely wide range of compounds allegedly useful as protein tyrosine kinase (PTK) inhibitors. The Opposition Division had concluded that, at the filing date of the application, the claimed compounds had not been plausibly demonstrated to be PTK inhibitors suitable for the treatment of cancer, which was the technical effect the patentee relied upon for inventive step. The Opposition Division therefore ruled that post-published evidence could not be used to support inventive step and the patent was deemed to lack an inventive step.

Anyway, the bottom line is that the EPO is a lawless place and no court should listen to it on anything, certainly not on UPC. The EPO has become a lobbying and lying machine, employing the tactics of WIPO to chill and silence truth-telling. To understand why so many EPO workers kill themselves (many also suffer mental breakdowns) one just needs to study the effect of the Stasi in East Germany.

And speaking of Germany, Dr. Birgit Clark‏ (a German living in the UK) repeated a Bristows talking point a few days ago. An anonymous EPO insider responded to her by quoting me as saying: “The UPC is NOT happening, stop promoting things that don’t exist, EPO.”

Henrion, in the mean time, said: “Deadline for submitting statements regarding the constitutional complaint against ratification of the UPCA is 31 Oct”

We may soon draft something to that effect. There’s still over a month left. Does anyone still seriously think a judgment can be handed down this year? No way!

Thomas Adam (UPCtracker) also said: “Ambitiously enough for commenters: DE complaint against UPC Agrmt: deadline for submitting views is end of October”

They were both linking to Kluwer’s pro-UPC blog (also found via SUEPO). Here is what it wrote:

A spokesman of the Court, the Bundesverfassungsgericht, declared in answer to questions of Kluwer IP Law that a request for comment on the complaint was sent to both chambers of German parliament (the Bundestag and Bundesrat); to the Federal Government (the Federal Chancellery, the Federal Ministry of Justice and Consumer Protection and the Federal Ministry of the Interior); to all governments of the Bundesländer and to the Federal Bar Association, the German Lawyers’ Association (DAV, Deutscher Anwaltverein) and the European Patent Lawyers’ Association.

The spokesman added that ‘during the further course of the proceedings it is possible that the Federal Constitutional Court may ask additional agencies to submit statements’. This could refer to for instance the EPO, the European Commission or the UPC Preparatory Committee, that have so far not received a request for comment.

So it’s going to take a very long time. The UPC will remain in limbo for a long time to come, definitely until the end of winter (if not forever).

Looking at IP Kat for any additional input, we merely found out that comments on the UPC are not showing up again. “IPKat moderators gone to sleep again? Comments taking a long time to appear. Is this an attempt to impede the debate.”

That’s what this comment said.

The SUEPO’s Web site was drawing attention to the comments in there.

Here is another:

Not being an EU Institution in itself does not make something exempt for EU laws, as national institutions are not EU institutions but are subject to national law which must comply with EU law.

What prevents all standard EU or national law from applying directly is presumably the relevant protocols on immunities

These are here:

http://www.epo.org/law-practice/legal-texts/html/epc/2016/e/ma5.html

https://www.unified-patent-court.org/sites/default/files/ppi_final_ii_en_clean.pdf

Not sure how they compare- not my area of expertise and Ive not seen any commentary on either of them. I’ve not seen suggestion that the UPC’s protocol itself is legally or morally problematic.

So you live in an echo chamber.

It didn’t take long for someone to reply to that:

I’ve not seen suggestion that the UPC’s protocol itself is legally or morally problematic.

Neither has there ever been any suggestion that the EPO’s protocol itself is “legally or morally problematic”.

It even includes a provision for co-operation with national authorities “to ensure the observance of police regulations and regulations concerning public health, labour inspection or other similar national legislation, and to prevent any abuse of the privileges, immunities and facilities provided for in this Protocol”. (Article 20)

What could possibly go wrong there ?

And next: the UK-IPO’s situation.

There’s also an interesting explanatory memorandum available here:

https://www.gov.uk/government/publications/eu-no12017-protocol-on-privileges-and-immunities-of-the-unified-patent-court

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/584443/EM_EU_1.2017.pdf

“The question remains thus why the UPC was not submitted for opinion to the CJEU,” said the following comment.

Point 90 in C 146/13 (the rebuttal of the Spanish complaint) is merely a summary of the 6th point brought forward by Spain, and cannot be considered part of the decision of the court!

When quoting the decision, please do it correctly and not in a biased way.

The position of the CJEU is to be found in Points 101 and 102 of the judgement:

101 However, it should be borne in mind that, in an action brought under Article 263 TFEU, the Court does not have jurisdiction to rule on the lawfulness of an international agreement concluded by Member States.

102 Nor do the Courts of the European Union have jurisdiction in such an action to rule on the lawfulness of a measure adopted by a national authority (see, to that effect, judgment in Liivimaa Lihaveis, C‑562/12, EU:C:2014:2229, paragraph 48 and the case-law cited).

103 It follows that the first two parts of the sixth plea in law must be rejected as being inadmissible.

The legal means used by Spain are thus not considered admissible, that means, that actually on this point , no decision as to the substance has been taken by the CJEU.

This is quite different from the allegations submitted.

Point 127 of the Gordon-Pascoe paper is an opinion, not a fact.

The question remains thus why the UPC was not submitted for opinion to the CJEU.

The best comment, however, is this one. Here is the ‘money quote’: “”industry in UK”! Nobody else. No wonder that the legal industry pushes to stay in the UPC!”

It also said: “Where has the British industry, I mean the real one, not the financial or the legal one, gone?”

The comment in full:

The explanatory notice signed by Mr Jo Johnson is quite revealing, and gives away some interesting figures:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/584443/EM_EU_1.2017.pdf

Fee income for UK ? £ 166 millions
Legal business for UK firms £ 200 millions

Savings through UPC for UK firms £ 2 millions no duplication of litigation

Savings through UPC for UK firms £ 17 millions on renewal fees

Who will be the big beneficiaries of the UPC, should UK be allowed to stay in it after Brexit: the legal “industry in UK”! Nobody else. No wonder that the legal industry pushes to stay in the UPC!

It is doubtful that £ 17 millions will be saved in renewal fees, as the number of patent owners from UK stem from the 3% of applications at the EPO coming from UK, and not all of them need protection in all member states.

Where the £ 2 millions in savings for avoiding litigation duplication for UK firms come from, remains a mystery.

It is surprising, but yet UK firms represent only 3% of the filings at the EPO (DE 15%, FR 7%, CH 5%, NL 4%, IT 3%, SE 2%). Those are official figures from the EPO.

Where has the British industry, I mean the real one, not the financial or the legal one, gone?

So what we have here is essentially a coup by the litigation ‘industry’. We said that a very long time ago (almost a decade ago). Sites like IAM don’t care about the real industry; they’re just sucking up to (and sucking money out of) law firms to publish promotional puff pieces like this one (about Switzerland). They spent years promoting the UPC, ignoring all along the voices of people who actually create things and instead giving the megaphone to Battistelli.

Shame on these parasites.

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. EPO Dislikes Science and Scientists

    The EPO's management has become like a corrupt political party with blind faith in money and monopolies (or monopoly money); it has lost sight of its original goals and at this moment it serves to exacerbate an awful pandemic, as the video above explains



  2. Links 1/12/2021: LibreOffice 7.3 Beta, Krita 5.0, Julia 1.7

    Links for the day



  3. Links 1/12/2021: NixOS 21.11 Released

    Links for the day



  4. IRC Proceedings: Tuesday, November 30, 2021

    IRC logs for Tuesday, November 30, 2021



  5. Links 1/12/2021: Tux Paint 0.9.27 and WordPress 5.9 Beta

    Links for the day



  6. [Meme] EPO Administrative Council Believing EPO-Bribed 'Media' (IAM Still Shilling and Lying for Cash)

    IAM continues to do what brings money from EPO management and Team UPC, never mind if it is being disputed by the patent examiners themselves



  7. The EPO's Mythical “Gap” Has Been Found and It's Bonuses for People Who Use Pure Fiction to Steal From Patent Examiners

    The phony president who has the audacity to claim there's a budget gap is issuing millions of euros for his enablers to enjoy; weeks ahead of the next meeting of national delegates the Central Staff Committee (CSC) tells them: "Events show that the delegations’ concerns about functional allowances have materialised. The lack of transparency and inflation of the budget envelope gives rise to the suspicion that high management is pursuing a policy of self-service at the expense of EPO staff, which is difficult to reconcile with the Office’s claimed cost-saving policy, and to the detriment of the whole Organisation."



  8. Video: Making the Internet a Better Place for People, Not Megacorporations

    Following that earlier list of suggested improvements for a freedom-respecting Internet, here's a video and outline



  9. Links 30/11/2021: KDE Plasma 5.23.4, 4MLinux 38.0, Long GitHub Downtime, and Microsoft's CEO Selling Away Shares

    Links for the day



  10. A Concise Manifesto For Freedom-Respecting Internet

    An informal list of considerations to make when reshaping the Internet to better serve people, not a few corporations that are mostly military contractors subsidised by the American taxpayers



  11. Freenode.net Becomes a 'Reddit Clone' and Freenode IRC is Back to Old Configurations After Flushing Down Decades' Worth of User/Channel Data and Locking/Shutting Out Longtime Users

    Freenode is having another go; after “chits” and “jobs” (among many other ideas) have clearly failed, and following the change of daemon (resulting in massive loss of data and even security issues associated with impersonation) as well as pointless rebrand as “Joseon”, the domain Freenode.net becomes something completely different and the IRC network reopens to all



  12. Jack Dorsey's Decision is a Wake-up Call: Social Control Media is Just a Toxic Bubble

    The state of the World Wide Web (reliability, preservation, accessibility, compatibility etc.) was worsened a lot more than a decade ago; with social control media that’s nowadays just a pile of JavaScript programs we’re basically seeing the Web gradually turning into another Adobe Flash (but this time they tell us it’s a “standard”), exacerbating an already-oversized ‘bubble economy’ where companies operate at a loss while claiming to be worth hundreds of billions (USD) and generally serve imperialistic objectives by means of manipulation like surveillance, selective curation, and censorship



  13. IRC Proceedings: Monday, November 29, 2021

    IRC logs for Monday, November 29, 2021



  14. Links 29/11/2021: NuTyX 21.10.5 and CrossOver 21.1.0

    Links for the day



  15. This Apt Has Super Dumbass Powers. Linus Sebastian and Pop_OS!

    Guest post by Ryan, reprinted with permission



  16. [Meme] Trying to Appease Provocateurs and Borderline Trolls

    GNU/Linux isn’t just a clone of Microsoft Windows and it oughtn’t be a clone of Microsoft Windows, either; some people set themselves up for failure, maybe by intention



  17. Centralised Git Hosting Has a Business Model Which is Hostile Towards Developers' Interests (in Microsoft's Case, It's an Attack on Reciprocal Licensing and Persistent Manipulation)

    Spying, censoring, and abusing projects/developers/users are among the perks Microsoft found in GitHub; the E.E.E.-styled takeover is being misused for perception manipulation and even racism, so projects really need to take control of their hosting (outsourcing is risky and very expensive in the long run)



  18. Links 29/11/2021: FWUPD's 'Best Known Configuration' and Glimpse at OpenZFS 3.0

    Links for the day



  19. President Biden Wants to Put Microsofter in Charge of the Patent Office, Soon to Penalise Patent Applicants Who Don't Use Microsoft's Proprietary Formats

    The tradition of GAFAM or GIAFAM inside the USPTO carries on (e.g. Kappos and Lee; Kappos lobbies for Microsoft and IBM, whereas Lee now works for Amazon/Bezos after a career at Google); it's hard to believe anymore that the USPTO exists to serve innovators rather than aggressive monopolists, shielding their territory by patent threats (lawsuits or worse aggression) and cross-licensing that's akin to a cartel



  20. Microsoft GitHub Exposé — Part VIII — Mr. Graveley's Long Career Serving Microsoft's Agenda (Before Hiring by Microsoft to Work on GitHub's GPL Violations Machine)

    Balabhadra (Alex) Graveley was promoting .NET (or Mono) since his young days; his current job at Microsoft is consistent with past harms to GNU/Linux, basically pushing undesirable (except to Microsoft) things to GNU/Linux users; Tomboy used to be the main reason for distro ISOs to include Mono



  21. Dr. Andy Farnell on Teaching Cybersecurity in an Age of 'Fake Security'

    By Dr. Andy Farnell



  22. IRC Proceedings: Sunday, November 28, 2021

    IRC logs for Sunday, November 28, 2021



  23. Links 29/11/2021: Linux 5.16 RC3 and Lots of Patent Catch-up

    Links for the day



  24. By 2022 0% of 'News' Coverage About Patents Will Be Actual Journalism (Patent Litigation Sector Has Hijacked the World Wide Web to Disseminate Self-Promotional Misinformation)

    Finding news about the EPO is almost impossible because today’s so-called ‘news’ sites are in the pockets of Benoît Battistelli, António Campinos, and their cohorts who turned the EPO into a hub of litigation, not science; this is part of an international (worldwide) problem because financial resources for journalism have run out, and so the vacuum is filled/replaced almost entirely by Public Relations (PR) and marketing



  25. Trying to Appease Those Who Never Liked Free Software or Those Who Blindly Loved All Patent Monopolies to Begin With

    It’s crystal clear that trying to appease everyone, all the time, is impossible; in the case of the EPO, for example, we hope that exposing Team Battistelli/Campinos helps raise awareness of the harms of patent maximalism, and when speaking about Free software — whilst occasionally bashing the alternatives (proprietary) — we hope to convince more people to join the “Good Fight”



  26. Links 28/11/2021: Laravel 8.73 Released, GitHub Offline for Hours

    Links for the day



  27. IRC Proceedings: Saturday, November 27, 2021

    IRC logs for Saturday, November 27, 2021



  28. Links 27/11/2021: Nvidia’s DLSS Hype and Why GNU/Linux Matters

    Links for the day



  29. [Meme] Linus Gabriel Sebastian Takes GNU/Linux for a (Tail)'Spin'

    If you’re trying to prove that GNU/Linux is NOT Windows, then “haha! Well done…”



  30. GNU/Linux is for Freedom and It'll Gain Many Users When (or Where) People Understand What Software (or Computing) Freedom Means

    Software that respects people's freedom (and by extension privacy as well) is an alluring proposition; those who choose to try GNU/Linux for the wrong reasons are likely the wrong target audience for advocates


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