09.16.17

Gemini version available ♊︎

European Patent Office Continues to Paint a Rosy UPC Picture Even Though the UPC May Already be Dead

Posted in Europe, Patents at 1:24 pm by Dr. Roy Schestowitz

UPC fake news

Summary: The European Patent Office (EPO) doesn’t let facts get in the way as another week passes with UPC promotion and further staff repressions

AS WE noted earlier this month, the EPO spits on local tradition/customs, probably for the sake of so-called ‘productivity’, as highlighted more officially in the EPO’s Web site yesterday (promoted via this tweet).

There is, moreover, a lot of greenwashing by Eponia (this example is from yesterday, but it’s repeated every couple of days).

If the EPO intends to repair its reputation, then it certainly does a really poor job. Yesterday, once again, it pushed the Unitary Patent, perhaps forgetting that it’s a patent office, not a lobbyist. “Looking for an all-encompassing guide for the Unitary Patent?”

They keep pushing the illusion of the UPC. But the UPC is dead/dying. Should so-called ‘customers’ not be told about that? The latest on this matter is, the whole thing is stuck at least until next year. The head of the Organisation is leaving in a fortnight and the head of the Office is leaving in summer. What happens then?

Thankfully, the tune of comments at IP Kat (those that get approved) is rapidly changing. Yesterday and today we found 4 comments on the subject, all of them rather pessimistic and quote-worthy. The first of these serves to remind us of patent trolls, which are obviously a threat/menace to British (or any European for that matter) businesses.

The comment focuses on the UK:

To quote from the original (UK) series of House of Cards: “You may well say that, but I could not possibly comment”.

The avoidance of duplication of litigation is easy to understand: if you only have to litigate at the UPC instead of at least in the UK, France, Germany and the Netherlands, then there could be a cost saving.

However, I would still take issue with the apparent presumption that there will be a “saving”. This is because those UK-based companies that litigate patents in multiple jurisdictions are hardly going to put many (or even any) of their key patents in an untested and uncertain system – especially where it is pretty certain that the UK will have to leave the UP system and may well not even be able to stay in the UPC system. There won’t be much of a “saving” if you still have to litigate separately in the UK!

Also, what about the additional costs to UK-based industry for defending / settling infringement actions launched (or threatened) at the UPC? Let’s not forget that there is a significant court fee (EUR20k) for mounting an invalidity defence… which could encourage “troll-like” behaviour from non-practising entities and could also have a chilling effect on UK (SME-based) industry.

All in all, I think that Mr Johnson’s figures nicely demonstrate what I have always perceived as problems with the UPP from the perspective of UK industry. Also, let’s be honest, those problems are just the tip of the iceberg when it comes to problems with the UPP.

As I see it, one of the biggest problems is that it attempts to meld together multiple sources of law (the UP Regulations, the Brussels Regulation, the EPC, the UPCA and national laws) and just expects that this will somehow magically work and will not contravene important principles under EU or national (constitutional) laws. And this is even before we consider the attempt to retain the UK in the system post-Brexit!

I therefore agree that the CJEU really should have looked at the system in detail well before anyone considered signing up to it (let alone bringing it into force). To be frank, the whole system is such a dog’s breakfast that it would be much better to write it off as a bad job and instead put effort and energy into creating a system that stands a decent prospect of actually working. Let’s hope that the BVerfG agree!

The next comment says that “many in the “pro-UPC” camp [are] adopting tactics of dismissing / minimising, or even turning a blind eye,” as usual. Facts don’t matter to them. To quote:

Of course, the reason why the CJEU was not asked up-front for its opinion on the UPCA is because that Agreement is not “between the Union and third countries or international organisations”, meaning that it was impossible to invoke the mechanism under Article 218 TFEU for obtaining an opinion.

This is a shame. Also, it is a shame that Spain’s challenge did not additionally allege contravention of EU laws due to the retroactive effect of Article 5(3) of Regulation 1257/2012. I would have been interested in the CJEU’s views on that point.

The constitutional challenge in Germany therefore provides the first (and much needed) opportunity for a court to express a view on whether the unitary patent package is consistent with important laws and legal principles. The delay caused by the BVerfG’s review of the complaints will no doubt be frustrating for those who are eager for the system to get up-and-running. However, I would merely point out that it is plain common sense to check for fatal problems before an important system “goes live”… to do otherwise would frankly be irresponsible.

In this context, I have been disappointed to observe many in the “pro-UPC” camp adopting tactics of dismissing / minimising, or even turning a blind eye to, the grounds of the constitutional complaint. Such attitudes are at best extremely unhelpful and at worst are painting a seriously misleading picture to clients and contacts.

To anyone engaging in such behaviour, I would merely comment that the complaint is what it is. It might be something or it might be nothing, but presuming that it is the latter is nothing more than wishful thinking. Having to scrap the whole system and start again would be a huge pain, especially given the efforts expended so far and the arrangements already made. But that is the price that has to be paid when a system is set up in such a way as to effectively ensure that there can be no independent oversight (to confirm compliance with existing laws) until such a late stage.

In this respect, I think that it would be very dangerous indeed to assume that the huge political and financial costs that would result from the system being killed at this stage will lead to the BVerfG somehow finding a way of dismissing the complaint. This is because such an assumption is an affront to democracy and the rule of law. That is, it would be akin to “boots on the ground” diplomacy, where the rights and wrongs of the situation become irrelevant because key developments are perceived to be too difficult to reverse.

With this in mind, I can only hope that the BVerfG feels able to judge the merits (or otherwise) of the complaints from a purely legal perspective.

“Why were they then so complacent with the UPC?”

That’s what the next comment says:

I can only but agree with Proof of the pudding. It is not too late, and before the UPC starts the agreement, as well as its RoP, should be checked by the CJEU.

In another blog, Kluwer not to name it, one commenter asked why the UPC Preparatory Committee was not asked to comment by the Federal Constitutional Court?

The reason is very simple to me: it wanted to have a non-biased reply about the UP and the UPC.

What is to be looked at with caution is the way the UPC Preparatory Committee was set up and was functioning. It is the result of this procedure which is questioned by Mr Stjerna in his complaint to the FCC. Only a small number of people ever discussed the matter, and the presence of some national judges cannot disguise the fact that only a limited number of lawyers firms were represented in the process and could well be considering as leading the process.

I cannot say whether or not Mr Stjerna is right when he has criticised those points in numerous publications (all available in English), but the feeling of a small group of people, which might consider itself as a kind of elite, has taken far reaching decisions without any parliamentary or democratic control, as only the UPC Agreement has been open to ratification.

I think that those are the questions behind Mr Stjerna’s complaint, and it is indeed to be hoped that the FCC sends the lot to the CJEU, even if the fiercest proponents of the UPC hope that the complaint will be dismissed. The quorum problem is not the most important one, and this can be settled easily by a new vote in the German Parliament. The other parts of the complaint are much more of a problem and cannot be dismissed at once.

What is at stake is not only the UPC agreement on its own, but also, and may be more importantly, its RoP. Packing substantive aspects into Rules is certainly more practical, as the RoP can be changed more easily, but by doing so, those aspects escape parliamentary or democratic control.

At the revision conference of the EPC in 2000, attempts were made in that direction, but they were resisted by the member states. Why were they then so complacent with the UPC?

Our guess is, as always, that the UPC in its current form will fail. It will fall flat on its face and they’ll start all over again (as they did before).

In reply to the above, someone says that the UPC “would really be immune from any parliamentary oversight as in the case of the EPO.”

Great news, eh? Another reason to crush the UPC before it even gets off the ground. To quote:

A lot seems to hinge on whether the UPC is an EU institution.
If it is then it might be considered subject to oversight by the European Parliament.
If not, then it would really be immune from any parliamentary oversight as in the case of the EPO.

http://ipkitten.blogspot.ie/2015/01/developments-at-european-patent-office.html

The bottom line is, the UPC should not be considered “just a matter of time” or “potentially desirable”; it has the potential to make a horrible mess in Europe, like Texas did in the US. Later this weekend we’ll show that China too is creating a growing, sordid mess by adopting policies proposed by the patent ‘industry’ instead of the massive manufacturing industry.

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. 38+ Years of GNU and 19+ Years of FSF Associate Membership

    “On November 25, 2002,” Wikipedia notes, “the FSF launched the FSF Associate Membership program for individuals.” As the above video points out, it all started almost 40 years ago.



  2. Gemini as a Platform for Gamers

    Contrary to what people often assume (or are led to assume), even without client-side scripting Gemini can accomplish a great deal; early adopters, many of whom are technical, test the limits of the very minimalistic (by design and intention) specification



  3. Improved Workflows: Achievement Unlocked

    Today we've completed a bunch of small projects that can make us more efficient (e.g. more Daily Links per day, more articles); the above video was recorded many hours ago to accompany the outline below



  4. Links 26/11/2021: New Complaint About Microsoft Competition Crimes in Europe, EuroLinux 8.5, GhostBSD 21.11.24, and Kiwi TCMS 10.5 Released

    Links for the day



  5. Links 26/11/2021: F35 Elections, Whonix 16.0.3.7, OSMC's November Refresh With Kodi 19.3

    Links for the day



  6. IRC Proceedings: Thursday, November 25, 2021

    IRC logs for Thursday, November 25, 2021



  7. IRC Proceedings: Wednesday, November 24, 2021

    IRC logs for Wednesday, November 24, 2021



  8. Links 25/11/2021: PHP 8.1.0 Released and Linux 5.15.5

    Links for the day



  9. IBM as Master of Hypocrisy

    Free software projects and Free software developers have long been humiliated by corporations of Western misogynists, falsely claiming that the Free software community isn’t inclusive enough (these are shameless projection tactics; as a matter of public record, the exact opposite is true) and even the eradication of supposedly offensive language isn’t something IBM takes seriously



  10. Links 25/11/2021: LibreOffice 7.2.3 and Mesa 21.2.6 Released

    Links for the day



  11. [Meme] So Desperate That Edge Cannot Even Exceed 4% That They Block Rival Web Browsers

    Linux/Android/Free Software/GNU (they go by very many names/brands) may continue to grow to the point where Windows is as irrelevant as Blackberry; this means that Microsoft’s grip on the Web too has slipped — to the point where Microsoft frantically uses 'bailout' money to hijack LinkedIn, GitHub, etc. (it also rebrands almost everything as "Azure" or clown to fake a perception of growth)



  12. Windows Vista Service Pack 11 (Vista 11) Has Failed to Curb the Growth of GNU/Linux

    Windows market share continues to decrease in spite of billions of dollars spent bribing the media for fake hype, especially in light of a new Windows Service Pack (SP), Vista SP 11



  13. Links 25/11/2021: Proton 6.3-8 and Linux Mint Compared to Ubuntu

    Links for the day



  14. 3.5 Years Later the 'Master' of Fedora is Still Microsoft and IBM Cannot Be Bothered to Alter Git Branch Names (Refuting or Ignoring Its Very Own Directive About Supposedly Racially-Insensitive Terms)

    Today we demonstrate the hypocrisy of IBM; years after telling us that we should shun the term "master" and repeatedly insisting it had a racist connotation at least 65 Fedora repositories, still controlled by Microsoft, still use "master"



  15. Changing the Arrangement While News is a Bit Slow(er)

    I've made it easier for myself to keep abreast of things like IRC channels and networks (incidentally, a day ago Freenode reopened to anonymous logins) and I've improved monitoring of the Web sites, Gemini capsule etc. (this video is unplanned and improvised)



  16. Links 24/11/2021: Alpine Linux 3.15 and Endless OS 4.0 Released

    Links for the day



  17. [Meme] Jimmy Zemlin Loves Microsoft

    It’s funny, isn’t it? Lying for a living and sucking up to the liars pays off; you get to plunder actual Linux users while leaving Linux morally and financially bankrupt



  18. Links 24/11/2021: PHP Foundation and Flatpak Criticisms

    Links for the day



  19. IRC Proceedings: Tuesday, November 23, 2021

    IRC logs for Tuesday, November 23, 2021



  20. Links 24/11/2021: Rust Crisis and Team UPC Still Faking 'Progress'

    Links for the day



  21. Links 23/11/2021: New GNU Parallel and Memories of David H. Adler (Perl, Raku)

    Links for the day



  22. In Light of Fast-Accelerating Deterioration -- Sometimes Weaponisation -- Getting Off the World Wide Web (to the Extent Feasible) Makes You Saner and Less Susceptible to Manipulation, Lies

    Almost no sites are speaking about it (probably because they have no presence on the Internet except on the Web), but it's time to motivate more people to get off the Web, for their own good and for society's sake...



  23. Black Friday SPAM on the World Wide Web: A Reminder That the Web is a Dying Platform, Languishing Due to Marketing and Misinformation

    The junk that overruns the Web this 'Black Friday' week (consumerism 'on steroids') is a good reminder that the Web isn't healthy for the mind anymore; it's mostly spying on people, trying to compel them to buy particular things or vote a certain way



  24. Microsoft-Led Misinformation Campaign About Germany and Munich Reminds Us That Microsoft Hates and Actively Undermines GNU/Linux Adoption

    Regarding the latest moves to GNU/Linux in Germany we have 3 points to make



  25. Links 23/11/2021: Libreboot 20211122, Deepin Linux 20.3, Amazon Linux 2022, and Mabox Linux 21.11 Released

    Links for the day



  26. IRC Proceedings: Monday, November 22, 2021

    IRC logs for Monday, November 22, 2021



  27. Links 22/11/2021: EasyOS Dunfell 3.1.11, Microsoft 'Extends' Mesa for Windows

    Links for the day



  28. Microsoft's GitHub is Hugely Toxic and It Censors Critics of Corporations or People Sceptical of Those in Power

    Sociopaths have taken over GitHub and control over GitHub (by Microsoft) is being shamelessly misused, just as we’ve warned all along; GitHub is social control media/network for code, asserting control over projects and developers by means of censorship and other sanctions



  29. EPO Staff Engagement Survey Predates the Pandemic and Provides False Assumptions for EPO Policies or Policy-Setting

    The EPO ticks a box for "surveying the staff", but is it actually listening? Is that done often enough? It was last done almost 3 years ago...



  30. Links 22/11/2021: Claws Mail 4 Enters Debian and Catch-up With Legal Matters

    Links for the day


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