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The Unified Patent Court (UPC) is Dead, But Spin From Team UPC is Now Abundant

Posted in Europe, Patents at 11:49 pm by Dr. Roy Schestowitz

Bristows seems to be promoting the EPO’s management again (even at IP Kat, which makes one wonder who controls this blog after the silence on EPO scandals)

The end
Team UPC is as bad as Big Tobacco lobbyists

Summary: As we predicted, Team UPC is now denying the very facts about a German court agreeing to hear a major UPC complaint, exploiting blogs with a larger audience to spread falsehoods

THE UPC has been a zombie for quite a while and a few days ago it was the final nail on its coffin. EPO management has said not even a single word about it; silence in this case is deafening. As for Team UPC? That’s another story…

“UP & UPC Conference”, a relatively obscure account with almost no followers, carries on as though nothing happened. The UPC is effectively dead, but people/accounts whose whole/sole purpose is UPC promotion do not let facts get in the way. “Liz Coleman, Divisional Director of @The_IPO,” [UK-IPO] it says, “will speak at the upcoming UP&UPC conference on 3 July, @EPOorg in Munich.”

That’s 3 days after Campinos takes over and by that stage, more or less for sure, it will have been too late for the UK (of UK-IPO) to do anything about UP&UPC. Brexit timeline suggests so. So what is even the point of this event? They might as well just call it off to save people the trouble.

We are rather worried to see what goes on at IP Kat, which until recently had among its writers a Battistelli friend from CIPA. Bristows wrote no less than 4 articles in IP Kat yesterday (that’s just one day). Makes one wonder who controls the blog nowadays… the most prolific writer is from Bristows, which lies a lot for the UPC. Bristows is like a leech that uses other people’s blogs (Kluwer Patent Blog and IP Kat for the most part) to disseminate its lies because almost nobody reads Bristows’ own blog. It’s almost defunct. Yesterday, like 3 days ago, Bristows published a “test” page (long UPC ramble/marketing) and forgot to remove it. Why does that keep happening?

Anyway, going back to IP Kat, yesterday it published an EPO ad and it was posted by Bristows’ Annsley Merelle Ward; pure job advert. Also on Friday there was this EPO tweet which said: “More information on how to comment on proposed changes to our appeal boards’ rules of procedure here…”

They are trying to prop up the illusion of caring about the Boards of Appeal, knowing that the constitutional complaint against the UPC has a lot to do with it. It’s worth noting that Bristows’ ad for the EPO is followed by provocative comments (trying to accuse people who work for the EPO of greed). There’s a correction to that and another person points out: “Something of a misrepresentation to label the job “permanent”, I would have thought, since the period is only for five years.”

And Battistelli can just fire the person using false accusations. So much for job security…

“The ‘non-compete’ clause is unfair,” the next comment added. “Restricting people so they can only work for a non-competing European Patent Organisation is unduly limiting!”

And it’s only getting worse, as we noted in our previous post.

What has happened to IP Kat?

Mind the infiltration of Bristows spin in IP Kat comments:

I’m sure The Register will be publishing a correction shortly.
The Register: “The German Constitutional Court has agreed to hear a case about the legitimacy of the European Unified Patent Court (UPC)”
Kluwer Patent Blog: “According to a spokesman of the FCC [Federal Constitutional Court], cases on the list haven’t necessarily been admitted for decision.”

This is denial of facts by Bristows. We wrote about this before the weekend. Also see Bristows’ nonsense being mentioned in IP Kat‘s latest “Around the IP Blogs!”

To quote:

Kluwer Patent Blog reports that the final piece of legislation in the process of ratification of the UPCA in the UK (i.e. The Unified Patent Court (Immunities and Privileges) Order) by the Privy Council) has been formally passed, and it is available here. As a next step, the UK Intellectual Property Office will need to collect together the relevant evidence that all legislative steps have been taken to enable ratification, and provide this to the Foreign and Commonwealth Office, which will then check the evidence, prepare the formal instrument, have it signed by the Minister (Boris Johnson MP) and finally lodge it in Brussels. If given priority, this process would normally take a few weeks.

When they say “Kluwer Patent Blog reports” they should really say “Bristows claims” (anonymously because it knows it’s lying).

Kluwer Patent Blog and IP Kat have essentially become sewers where facts come to die. This is troubling.

Meanwhile, according to this account whose whole purpose is UPC promotion, we can simply ignore what happened a few days ago. Why? Statistics. Bristows kept using statistics to say that the complaint would be considered inadmissible and it was wrong. Now they use the same spin: “Since average pendency of constitutional complaints w BVerfG has been mentioned, this is the stats spanning 2008-16: 64% terminated in 1 yr, 22,6% in 2 yrs, 5,7% in 3 yrs. Importantly, this includes the huge number (among the 6000 filed annually)”

“UPC and EPC problems [are] complicated enough and still ongoing,” I told him, “it’s not like you can treat all cases as equal.”

The lengths to which these people will go are incredible. They live in a fantasy land and no matter how many times they’re wrong, they’ll just carry on lying.

There’s press coverage regarding the latest news, some of which in English (British media). Here’s WIPR with “German court agrees to hear UPC complaint” — an article that says this:

The German Constitutional Court (Bundesverfassungsgericht, BVerfG) has agreed to hear a constitutional complaint disputing the legitimacy of the Unified Patent Court (UPC).

In June last year, the court announced it was delaying Germany’s ratification of the UPC Agreement because of the complaint, which was believed to have been filed by Düsseldorf-based attorney Ingve Stjerna.

Stjerna questioned the democratic accountability of the regulatory powers overseeing the UPC’s operation and the independence of the judiciary. He also argued that the UPC breaches existing EU law.

The complaint prompted the BVerfG to ask Germany’s Office of the President not to sign the law on ratification while the case was being dealt with, a request which the presidential office has agreed to.

Fair enough.

And back we go to Team UPC (“UPCtracker”) which says: “German constitutional complaint, further background/stats: the two Senates of the German Constitutional Courts had no more than 7 oral hearings in 2017.

So what? Does that mean to say that nothing will happen?

A British site for lawyers went with the headline “Unified Patent Court project at risk, warns Munich lawyer” just before the weekend.

Understatement. The UPC is dead, but this Munich lawyer refuses to admit this. Must be shellshocked. To quote:

Peter Koch of Pinsent Masons, the law firm behind Out-Law.com, said that despite some positive news on the UK’s ratification process in recent times, an ongoing legal challenge in Germany is threatening to derail the whole project – even if the challenge is unsuccessful.

Germany’s Constitutional Court is to consider whether legislation approved by Germany’s parliament to ratify the UPC Agreement is constitutional after a complaint was filed last year.

Here’s a response to it from former ‘Kat’ David Pearce‏: “As I keep saying, the #UPC is dead. The UK would be idiotic to ratify before Germany decides on constitutionality. Best to keep it as a (rather small) negotiating card for now, but chances are it will not get a chance to be played.”

Even Team UPC took note of the above article, quoting: “Koch said that it is likely that, even if the legal challenge fails, Germany’s ratification of the UPC Agreement might not come prior to the UK leaving the EU. This would have implications for the whole project, he said.“

We expect the likes of Bristows to carry on lying for weeks if not months. Letting them lie unchallenged is not an option because they attempt to influence the outcome with these lies. They already increase censorship of comments in an effort to muzzle people who say the truth about the UPC.

EPO Roundup: Low Profile, Employment Changes, Patent Trolls, Refusal to Obey Courts, and Animal Breeding Patents

Posted in Europe, Patents at 10:52 pm by Dr. Roy Schestowitz

Breeding patents back on the agenda


Summary: A few recent developments and observations regarding the European Patent Office (EPO), which is in a volatile state and is making no public statement about the future of staff (‘canteen talk’ now revolves around alleged deep cuts to staffing)

THE EPO has made no announcements for quite a while. Low profile seem to have generally been kept so far this year. We’ve hypothesised about the reasons for this, but these are merely hypotheses. We can recall days (or months) when the EPO made plenty of controversial statements, but nowadays both the site and the accounts (of the EPO) say nothing of great importance. Yesterday the EPO spoke about “intellectual property & patents,” which is an odd way to frame things. “It’s misleading to say” that, I told them, “because the former is a propaganda term, the latter a law which is typically put under this umbrella that’s a propaganda term. It’s not a property.”

Unlike the USPTO, the EPO does not deal with anything but patents (the “T” in USPTO stands for trademarks). It’s important to separate all these things and not refer to them collectively using terms like “IP”, which perpetuates old falsehoods. Speaking of which, there’s that old canard about “innovation” in yesterday’s news from the US. Real “invention” isn’t to be measured in terms of patents, but the article “Washington state stakes its claim as a bastion for invention” would have us believe otherwise. To quote:

Washington was home to 2,220 inventors in 2017 (29.98 per capita), behind New York’s 2,290, Texas’ 3,007 and California’s 10,009, according to U.S. Patent and Trademark Office data.

This has a lot to do with where large corporations are based, not with inherent spark for inventorship. We’ll revisit this topic later in the weekend. We intend to write a lot about the US.

It has meanwhile been reported in news sites that, just as we noted the day before, a Battistelli proposal had been watered down. To quote:

A proposal to scrap permanent employment contracts at the European Patent Office (EPO) has been halted and a controversial article within it withdrawn, a source close to the Staff Union of the EPO (SUEPO) has confirmed.

The original proposals were aimed at the “modernisation of the employment framework of the EPO” and would ensure its “long-term sustainability” and allow for a more “flexible management of the EPO’s workforce”.


According to the CSC, it would apply to all staff, including current permanent employees of the EPO, and gives the office the power to terminate the service of staff without any safeguards.

The source said that the CSC’s letter was a driving force in the withdrawal of article 53(f).

Additionally, there’s this new article about the ascent of patent trolls in Europe — based on a study that the patent trolls' lobby immediately attacked (within hours of publication). To quote:

Furthermore, according to the study, patents being asserted or owned by NPEs in Europe are more often successfully invalidated than those patents being asserted or owned by non NPEs. The study also shows that Germany is oftentimes the battleground for such litigation. Here, a defendant in a patent infringement case cannot bring a counterclaim for invalidity but has to attack the validity of the asserted patent in a different forum. This usually means either starting an opposition procedure, most often before the European Patent Office, or filing a nullity action with the German Federal Patent Court. In the latter case, the infringement case will usually have already been decided on – and the decision potentially been enforced – before the validity case is ruled on.

Last but not least, another law firm (Moeller IP Advisors) wrote about Battesteli’s latest INPI (Argentina) visit — a subject we wrote about earlier this month. To quote:

On February 5, 2018, the European Patent Office (EPO) and the National Institute of Industrial Property of Argentina (INPI) signed a Memorandum of Understanding (MoU) on the introduction of the Cooperative Patent Classification (CPC) by INPI. The MoU was signed during a meeting held between EPO President Benoît Battistelli and Argentina’s Commerce Secretary Miguel Braun in Buenos Aires to discuss recent developments in patents and innovation and the cooperation between the two regions in this field. According to the MoU, INPI will start classifying its publications with the CPC by January 2019.

The CPC, which was launched by the EPO and the USPTO in January 2013, is now considered the new global standard for refined patent classification. It is already in use, or will soon be used, by 26 patent offices around the world. Argentina has joined other Latin American countries, including Mexico, Brazil and Chile, in the adoption of the CPC.

These nations barely have any European patents (compared to Germany for instance), so it seems like another cheap publicity stunt for Battistelli, who is leaving the Office in 4 months.

Battistelli’s legacy has been a very ruinous one not just for the EPO but for international bodies in general. Look no further than the latest comments at The Register. Here are some key ones (posted in the past day or so):

Given that Battistelli ignores all court judgements against him, seemingly with impunity, what will it matter how the court rules? He’s taking advantage of the requirement for unanimous agreement by the EO’s controlling bodies to ignore them, until he can change the rules to make himself an untouchable dictator for life.

This one he cannot ignore. If it goes against him it de-ratifies the convention which is the basis of him being in office.
Additionally, if memory serves me right, one of the other cases is his (so far) successful claim that he is above German law including labour law. This once again goes against German constitution which states that the ultimate law of the land is the German law and no other law can claim supremacy.
Even if the first case somehow (I do not see how) fails, the second will pretty much get him fired outright under German labour code. There and then.

I think at a certain stage, courts say “we disagree, and you’ve now got a prison sentance for contempt of court”.
And if he doesn’t turn up for that, then a warrant for his arrest is issued, and he ends up with famously humourless german police arresting him and unceremouniously tossing him in the clink.

The European Patent Organisation is recognised in German law as an international organisation with immunity (like diplomatic immunity).
So German labour law doesn’t apply to their workers. Diplomatic immunities do not conflict with the German constitution.

Surely diplomatic immunity only works if the hosting country accept it. At any time Germany could expel him, deport him to his home country and end the diplomatic immunity formally.
As an EU citizen he is probably free to re-enter the country, but with his immunity formally ended if he walked into the office and started acting as king again, there shouldn’t be anything stopping the humourless police doing their thing.

If the EPO is not subject to national laws, does that mean that employees are similarly not constrained by the law in their work?
This surely means that it’s legal for an EPO employee to provide lethal feedback to the management team?
Maybe someone should ask Battistelli if he’s sure he wants his organisation to have immunity from national laws.

Not implementing the ILO decision?
I was just wondering if anyone knows whats the come back against Battesteli and the EPO for not implementing the IPO’s [sic. ILO] decision?
As far as I was aware when it came to labour disputes, the ILO is the be all and end all. So its not like the EPO are waiting to appeal the decision. So what is the punishment from the ILO? There has to be some stick involved otherwise firms/organisations finding themselves on the losing side of a case would just ignore the result.

Yes, ILO’s reputation too is in peril now.

As one person succinctly put it:


The person who achieved something I would have thought impossible – giving megalomaniacs a bad name.

The repercussions of his power obsession seem to be endless.

There’s also a comment on quality of patents:

*retain* confidence Europe’s patent system? Get real …

…that would imply there was such a feeling in the past …
The European patent system is broken. There are absolutely no guards left against patenting the most obvious bullshit. Patents on as-per-the-rules unpatentable things (like DNA or code) are granted without hesitation.
Number of patents granted has replaced quality of examination as the number 1 requirement for examiners at the EPA.
That way the EPA is effectively laying out a mine-field in the way of future innovation.
Patent examiners critical of that development are pushed out of their jobs.
Regaining control over the EPA is the necessary first step.
Re-examining the patents granted in the last years and invalidating 90% of these would be a good second step.

It certainly seems like patents on nature are back at the EPO (even after the seeds/plant monopolies being voided along with CRISPR oppositions). From yesterday’s news: “KeyGene Crop, Animal Breeding Patent Upheld in Europe”

It’s mostly behind a paywall, but the publicly-available part says “KeyGene announced today the European Patent Office (EPO) has upheld one of its patents related to the improvement of phenotypic traits of plants or animals.”

This kind of patent has already caused protests in Germany. Farmers aren’t happy; it’s akin to those Monsanto (now Bayer in Germany) patents that accomplish nothing but cementing the market for few giant corporations.

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