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01.16.18

EPO Management and Team UPC Carry on Lying About Unified Patent Court, Sinking to New Lows in the Process

Posted in Deception, Europe, Patents at 7:13 am by Dr. Roy Schestowitz

It can never sink low enough

UPC boat

Summary: At a loss for words over the loss of the Unitary Patent, Team UPC and Team Battistelli now blatantly lie and even get together with professional liars such as Watchtroll

THE EPO races to the bottom. The management quit giving a damn about the EPO’s reputation and it is now lying so routinely that staff is left embarrassed (or staff’s intelligence insulted). There are many sectors where lying to staff is easy and management can get away with it. But not patent examiners (scientists). They are hard to mislead and they don’t like being managed by people far less intelligent than them — people who get their job owing to nepotism and submissiveness to authority. Intelligence is no longer being rewarded at the EPO; instead, it’s blind loyalty and lack of scrutiny of patent applications (for the sake of ‘production’). It’s alarming because it means that the EPO won’t be able to attract — and at the same time lose — its most valuable asset, which is smart people. This is how organisations prosper and perish; it’s all about who they’re able to recruit.

We were a little shocked (but not entirely surprised) yesterday when the EPO’s official account wound up retweeting Watchtroll. How low will they stoop to promote the UPC lunacy? Watchtroll is notorious among the online communities that care about science and facts. Here is what the tweet said:

Join me on Thursday 1/18 at 12pm ET for a free webinar on the #UnitaryPatent. Will have a guest from @EPOorg and a European Patent Attorney. Register at http://bit.ly/2CWKtwr . Sponsored by @MorningsideIP pic.twitter.com/VYnpTLHPiY

Incredible. So the EPO is now getting together with these dishonest bullies who promote patent trolls. What next? EPO on Breitbart? Oh wait, that already happened; they look to recruit Breitbart readers.

Either way, what we are gradually witnessing more and more of is departure from science and truth at the EPO. When the EPO gets together with academics it actually pays them to disseminate lies about the UPC [1, 2]. There are always some dishonest academics (lacking integrity) looking to make a quick buck.

Watch what the EPO tweeted yesterday. Again, it’s embarrassing. This is a bunch of lies. The EPO is structuring itself to make accountability weaker, operations worse, and even a study warned them against it. But this helps promote Battistelli’s buddies in DG1, so what’s not to like? These misleading tweets about misleading old ‘news’ from Team Battistelli will not fool EPO employees. They’re too smart for Team UPC’s lies as well.

What now? Well, they’re spreading lies again and it’s working; it enters the media.

“DAV is not the official German Bar Association but nothing more than a private association with voluntary Membership,” one EPO insider wrote. But of course the media doesn’t care about such ‘pesky’ facts, which came directly from Team UPC (later, upon challenge, admitting that it lied).

Some media (all the media that we’ve seen so far!) repeated these claims from Team UPC, calling a submission to the court a significant step towards dismissal of the complaint and attributing it to “German Bar Association”. The headlines spreak for themselves (there have been only two): 1) “German Bar Association says Nein to patent court block effort”; 2) “UPC complaint “inadmissible” says German Bar Association” (both sites are British).

As one can immediately see, these headlines can mislead (most people read just the headlines). This is why Team UPC was spreading the lie that DAV is ‘the’ “German Bar Association” (that isn’t what it really is). The latter keeps citing groups like litigators, so it’s obviously interested only in the views of hardcore litigation lobbies. To quote the exception (IP2Innovate, which we wrote about before [1, 2]):

Advocacy coalition, IP2Innovate, whose members include Google, Spotify and Intel, claimed that trolls already make up a “staggering 20 percent of all patent lawsuits in Germany”.

Patrick Oliver, executive director of IP2Innovate, said that the UPC was a cause for concern and could prove an “attractive venue for patent abuses”.

A spokesperson for the coalition added that “the threat of an EU-wide injunction is a powerful weapon, and the UPC hands PAEs exactly such a weapon.”

Some of the more interesting stuff is happening in the comments at The Register

For starters, Team UPC’s Alex Robinson admits that he lied about DAV being what he claimed it to be (comment #4). To quote:

It’s been drawn to my attention (via comments on Kluwer and correspondence on Twitter) that the DAV is not the official German Bar Association, but instead is a voluntary association. The German Federal Bar Association (of which membership is compulsory) is the Bundesrechtsanwaltskammer (BRAK). This, too, was invited to file observations, but as yet they have not been made public, if such observations were indeed submitted.

An important thing to bear in mind here is that the decision on admissibility ultimately falls to the German Federal Constitutional Court. Thus, while the DAV opinion certainly provides one set of arguments in favour of inadmissibility, this is not a foregone conclusion. Many other organisations have also been invited to comment, but most German practitioners I’ve spoken to expect those organisations to take more or less the same line as the DAV.

My understanding is that the Federal Constitutional Court now has a range of options ranging from a straightforward written finding of inadmissibility at one end, all the way through to – at the other end of the scale – an oral hearing at which both the admissibility and the substance of the complaint are argued in detail. We will probably not know which option the Court will go for until it makes an announcement informing us. This could depend on how persuasive the judges find the arguments for admissibility/inadmissibility from either side.

The lack of transparency in this procedure overall is really quite striking. (If anyone can confirm that this is a general feature of German legal proceedings, do let me know!) The DAV is, in my opinion, to be commended for publicising its position even though many readers of this blog and others may well be in disagreement with the idea of the UPC.

Well, maybe the headline needs to be corrected; Robinson’s headline, The Register‘s headline and the rest. But don’t expect them to do it. To Robinson, such lies are “valuable” or “useful”, so why bother correcting the error?

Check out the next comment about DAV (Tilmann et al):

The DAV’s comments should not be taken at face value. The most recent comments on another Kluwer post illustrate why the DAV’s submissions “amount to nothing more that smoke and mirrors, together with desperate attempts to gloss over gaping holes in the legal arguments”:

http://patentblog.kluweriplaw.com/2017/12/12/prof-tilmann-fcc-several-reasons-reject-inadmissible-complaint-upca/

Whilst the EPO might be an international organisation that is afforded various privileges and immunities, this does not mean that it can operate without any thought to the constraints imposed by EU law. For example, the EPO’s assessment of patentability must respect the provisions of the Biotech Directive. If this does not happen, then there could be serious consequences for the EU Member States. The failure of the DAV’s submissions to acknowledge such complexities therefore provides yet another reason to take their views with a pinch of salt.

As we put it yesterday, UPC is built on political mischief and misconduct, it’s basically just a lie, and Team UPC are greedy liars. Just like the EPO management right now… they belong together. Team UPC and Team Battistelli (EPO management) tell us whatever lies promote the illusion that the UPC is desirable (they like talking about “SMEs”). They want us to think that they ‘unify’ Europe (hence an acronym with “unified” or “unitary”, after the latest rename of “EU” and “community”). It’s all about profits of litigating entities and it harms SMEs the most (they rarely even operate outside their home country).

Finally, just to show the sheer dishonesty of Team UPC, check out what Herbert Smith Freehills LLP’s Rachel Montagnon published yesterday. This is the headline: “The Unified Patent Court (UPC) – Open for Business in 2018?”

Pushing lies with a question mark at the end still makes these lies. They’re clearly getting desperate and they ignore every fact which does not suit them, pretending all barriers are gone, including some of the biggest ones, for example:

German ratification is dependent on the outcome of the challenge being mounted in the German Federal Constitutional Court (FCC) regarding the constitutionality of the law passed by German Parliament on the UPC’s implementation. The German court has asked for observations on the case and had previously set a deadline for any comment by end of October 2017 – though it has been reported that this has now been extended to the end of the year. The FCC will then determine whether or not to dismiss the complaint, a process which is expected to take until at least April 2018. If the complaint is dismissed, Germany will be able to ratify the UPCA soon after. There has, however, been talk of the possibility of the case being referred to the Court of Justice of the EU (CJEU), which would cause substantial delay to the case being decided and ultimately to Germany’s ratification.

See? Not a problem! The complaint in Germany? It’s gone. Poof!

Just because they want barriers to vanish doesn’t mean they will. The author feels comfortable leaning on Jo Johnson, at no point bothering to point out that both he and his predecessors are gone!

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