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A European Unitary Patent-Like System (e.g. UPC) is Not Compatible With Law; Expect it to Rot Away at the German Federal Constitutional Court

Posted in Europe, Law, Patents at 2:52 am by Dr. Roy Schestowitz

If the Rule of Law means anything, the UPC will never resurface again (in any form whatsoever)

5 marble columns

Summary: The “community” a.k.a. “EU” a.k.a. “unitary” patent system is collapsing and there’s no sign that the matter will be settled any time soon

THE EPO won’t see the UPC coming to fruition. Battistelli certainly won’t. What we believe most likely to happen is, they’ll rename it (yet again), change the vision somewhat, then reattempt. Time will tell…

It’s quite interesting to see just to what degree Techrights impacts UPC coverage. A few hours after we complained that Bristows had been deliberately ignoring this departure of Jo Johnson (weeks ago!) it finally decided to write a blog post about it and say: “The UK IPO has confirmed that Sam Gyimah is now the Minister responsible for IP.”

“What we believe most likely to happen is, they’ll rename it (yet again), change the vision somewhat, then reattempt.”This has been confirmed for quite a while now. Bristows just chose to overlook all that because it’s very detrimental to and negative if not fatal for UPC progress/prospects. As one can expect, the blog post is amazing spin. Bristows can apparently read minds (never mind if it always got it wrong on UPC, for several consecutive years); it pretends to know everything about Gyimah’s intentions; as if Gyimah will just do something Johnson spoke about back in 2016 (when everything was very different). Don’t fall for it…

So what is the real news? Well, let’s research and see what Team UPC and domain experts are saying. It’s about Germany — the focal point at the moment.

“I have read the entire complaint which circulates in the Internet,” one person said. They brag about being able to read the constitutional complaint.

“Bristows just chose to overlook all that because it’s very detrimental to and negative if not fatal for UPC progress/prospects.”There is also a ‘non-update’ update from JUVE’s editor. “This may be of any interest as well,” he wrote. “Statement from @BVerfG: Neither a date for the oral hearing nor for a judgement is known yet.” That’s basically a non-news. The news is that there’s no news.

Anton Horn added: “Update on the status of the pending German constitutional complaint regarding the planned…”

The update is, well… no update. In the world of journalism there are all sorts of terms for that thing (turning a non-event into an actual event worth reporting on). This was soon mentioned by Team UPC (mostly just repeating what Juve reported, adding the pro-UPC talking points). “I would welcome your comments,” said the person who calls me a "troll" for opposing the UPC and calls readers of Kluwer "idiots" while he deletes their comments.

Alexander Esslinger‏ (a.k.a. “patently German”) said: “An early judgement on the complaint against the ratification of the #UPC before the German Federal Constitutional Court @BVerfG is not in sight…”

Yes. this is our understanding as well.

“Well, the EPO is a cash cow to Germany; the UPC in its current form would be too.”Thomas Adam (a.k.a. “UPC tracker”)‏ wrote a bunch of useful tweets, including this one which notes, “of the 27 invited institutions and associations only 7 filed amicus curiae briefs on UPC constitutional complaint, including the German government and the EPO. Same applies to the Federal Bar Association (BRAK; as a member, one wonders what they have said).”

JUVE’s editor responded to him by saying: “Interesting as well that neither house in German parliament nor the federal states hosting the four German local divisions submitted a amicus brief. Sign they do not differ from the government’s opinion.”

Well, the EPO is a cash cow to Germany; the UPC in its current form would be too. But the constitutional complaint is about law, not about money motives. Greed in its own right does not bypass laws and constitutions. Unless of course we wish to accept lawlessness…

“Greed in its own right does not bypass laws and constitutions. Unless of course we wish to accept lawlessness…”The way we interpret the above (three quarters of parties not filing a submission with an opinion) is, a lot of pro-UPC parties have given up. They perceive a submission to be a waste of time (and money; they charge a lot for hourly work). This whole effort might not matter now. The boat has already left and the UPC is neglected. It’s worse than stuck. It's likely dead.

Thomas Adam has looked at another submission and said: “UPC constitutional complaint DE: Submission of German IP association GRUR limited to „specific patent law-related“ Q‘s (p3 at top) and while pro-UPC no explicit statement as to merits of complaint. (Plus typo in quote from ECJ C-146/13 on p27). http://www.grur.org/uploads/tx_gstatement/20 [] GRUR submits (p2 bottom) that a clear majority of members had been in favour of UPC/UP, controversial discussions w/in GRUR notwithstanding. As for language of proceedings, states that already now parties often cannot rely on their mother tongue, eg in EPO opposition. [] GRUR: Question of whether EPO granting procedure entirely kosher not an issue of EU law but entirely unrelated and UPCA does not lead to that procedure being integrated in EU law (p27 w reference to ECJ C-146/13, n30). [] Also, most technical literature as well as specialist terminology were in English (p25). Language of EPO proceedings also decisive in interpreting patent claims (Art 70 EPC).”

“The UPC is not compatible with law.”We have chosen to emphasise (above) the part about the language because of the following remarks. One UPC critic from Spain said that “Spain signed up to the EPC because it was as a precondition for entering into the European Community in 1986. It is not clear what would obtain Spain joining the UPCA.”

Spain opposes the UPC for various reasons including language. And mind the response to this: “EPO is a patent office, and national patent offices can translate the EPO patent. UPC is a court, the language of proceedings cannot be in a language that people do not understand. J.J. v. the Netherlands(27 March 1998), para 43; Albert and Le Compte v Belgium, (1983) 5 EHRR 533…”

So that seals it. The UPC is not compatible with law. It’s one among several issues apparently raised in the complaint.

“It’s the habitual misinformation we see from IAM, which has just bashed Spain (yet again) for rejecting the UPC.”It’s worth noting that IAM, which was paid by the EPO’s PR firm for UPC promotion, has just published this promotion of an upcoming event (IPBC Europe) in which it says “emergence of the Unified Patent Court will be crucial for European companies going forward.”

A lie such as this is typical. It’s the habitual misinformation we see from IAM, which has just bashed Spain (yet again) for rejecting the UPC. That’s the context of the remarks above.

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