Bonum Certa Men Certa

The Unified Patent Court (UPC) is Not Happening, But Kluwer Patent Blog Pretends It's Already in Force

As if the only question now is who governs it

Self-Fulfilling Prophecy
"...the beginning, a false definition of the situation evoking a new behavior which makes the original false conception come true" --Sociologist Robert K. Merton on Self-Fulfilling Prophecy



Summary: The truly delusional writings, not to mention intentionally dishonest creed, show that Team UPC is a threat to truth itself, not just to the European economy

THE EPO scandals are no longer being covered -- let alone mentioned -- in so-called 'IP' blogs. It's seen by them as "not beneficial"; they'd rather just sweep EPO examiners under a rug somewhere.



"Looking at some of the comments that made it through the censorship, it seems clear that even Kluwer Patent Blog contributors (Thorsten Bausch at least) found the article misleading.""Limiting your European Patent nationally" was the title of this blog post from Kluwer Patent Blog yesterday. It was the first blog post in a long time. It was published along with another propaganda piece about the UPC. It was authored anonymously, but it certainly looks like the author was Bristows cloaked as "Kluwer Patent blogger". As usual, comments are being 'sanitised' there, so a real discussion cannot be made visible. One must assume that dissent gets deleted to protect the propaganda. Maximalists are happy about it (this is being promoted via patent maximalists). Team UPC keeps pretending that no barriers exist after that awful IAM 'interview' (widely criticised around the Web). Notice the loaded headline which makes the reader assume that Unitary Patent is in force and what remains to be decided is under whose wing. The headline is merely a quote/quote-mining: "EU should bring Unitary Patent system under its control" (quoting a "former chief economist of the EPO").

Here's a little portion:

Still, even if the German complaint is rejected and the Unitary Patent system enters into force at the end of 2018 or in 2019, van Pottelsberghe doesn’t expect too much of an impact on innovation – which is in principle what patents are all about.


One UPC booster said:

Which wd be the end of any UK #UPC participation: „[T]his single layered system should be much more an EU endeavour and not in the hands of a ‘dreadfully independent institution composed of 38 stakeholders of member states’, accdg to van Pottelsberghe.“


A phrase such as "end of any UK UPC participation" is misleading for two reasons; first of all, the UK never participated and secondly the UPC never existed and probably will never exist. We recently wrote a lot about why Britain can never participate in anything like this:



Meanwhile, this new press release came out [1, 2]. This came out in the UK, advertising a "2 Day Conference for Senior Patent Administrators (London, United Kingdom - September 27-28, 2018)" and saying the following: "It will help you understand how recent changes at the EPO, WIPO, USPTO and the Unitary Patent Court will impact your role."

Will?

Putting aside the fact that the UK cannot participate, the UPC isn't happening. This merely perpetuates a falsehood. Further down, under day two, it says there's a 12.45 session on "The Unified Patent Court".

Maybe they believe that if they carry on pretending that the UPC is just about to start, then it will actually happen.

Looking at some of the comments that made it through the censorship, it seems clear that even Kluwer Patent Blog contributors (Thorsten Bausch at least) found the article misleading.

Thorsten Bausch wrote:



Thank you for collecting this interesting opinion. My only comment is that I found the headline slightly confusing. What I understood Prof. van Pottelsberghe to suggest is not so much that the EU should bring the Unitary Patent system under its control – he argues rather, and rightly in my view, that the EU should bring the EPO (European Patent Office) more under its control. That, he argues, would enable the EPO to serve and be part of the EU’s industrial policy, for the sake of European consumers, universities and entrepreneurs.

I agree with him now, but must admit that there were times in the past when I was of a different opinion and thought it is actually a good idea to have a Patent Office that is outside the EU and not committed to serve its industrial policy or other political agendas of the day. I saw it as a great chance to achieve European unification and harmonisation beyond political borders and even including countries having quite different political systems. Which it has been and still is. Clearly, if the EU brings the EPO more under its control, this may serve to exclude non-EU countries, at least in the long run.

However, the current status of the EPO as an international organisation that enjoys immunity, but is not supervised effectively and lacks any effective integration in a judicial system that safeguards elementary human rights and the rule of law is highly problematic and probably not sustainable in the long term future. Were the EPO to become an organ of the EU, this would definitely change for the better.

In any case, it is time to re-think the entire European Patent Organization, in my view.


An earlier comment said this:

I can agree that the advent of the UP system would “make the patent system in Europe quite complex”. I can also agree that “the European Commission should find a way to bring the EPO more under its control”. However, I believe that Mr van Pottelsberghe has seriously underestimated the complexities on both of these points.

For example, the “international” status of the EPO has so far enabled the management of the organisation to effectively ignore even basic principles under human rights laws (such as the right to a fair trial or to COLLECTIVE bargaining). Under these circumstances, and given the principle of supremacy of EU law (INCLUDING the Charter of Fundamental Rights), how could it be possible for the Commission to “control” the EPO in any way?

On the other hand, the advent of the UP system promises to bring into effect a system in which post-grant “game-playing” by patentees can not only change the forum in which a patent is litigated but can also change the law of infringement that is applied (and hence change the outcome of the litigation). Such a system is not just “complex”, it is absurd. It also dispatches the concept of legal certainty to the dustbin of history.

I have never seen any such complexities even acknowledged (let alone taken into account) in connection with a “study” on the possible benefits of the UP system. So you will have to forgive me if I am more than a little cynical about the chances of that system doing anything other than providing an additional advantage to those patentees having the deepest pockets (who will be best placed to take maximum advantage of the insane levels of complexity and uncertainty that are inherent in the system).



A person who used to comment a lot in IP Kat (barely did lately) said:

Ah, the European patent “system”! A bit like the famous old Punch curate’s egg, eh? “Good in parts”.

Which part is good? Why the EPC and the Established Caselaw of the Boards of Appeal of the EPO, of course. This is a roadmap for everything to do with eligibility, patentability and validity of patents, and it provides hugely more legal certainty on all of these matters than anywhere else in the world. It is a benchmark for national Supreme Courts all over the world, something Europe should be very proud of and something industry in Europe should be very grateful for.

How did this come about? Some might suggest that it is precisely because the EPC and the EPO’s established caselaw has been conceived, written and implemented free from political influence and control. rather, the EPC and the EPO simply strive to dispense justice and fairness between i) patent-owners and ii) their competitors constrained by the patents the EPO issues. Reasonable certainty for the public, yet a fair scope of protection for inventors. Good patents enforceable, bad patents struck down.

So I’m not convinced that putting the EPO under more political control is in every respect a good thing.

But I’m with Thorsten and others that it would be a good thing for the basic rights of employees at the EPO.

In the end, these two issues are, for me, very important, but I’m doubtful how much they matter, for Professor Bruno van Pottelsberghe.


The above, from MaxDrei, shows that Kluwer Patent Blog fails to convince even its own readers of what it is trying to say about UPC. Maybe the target audience is some gullible politicians. ⬆

Recent Techrights' Posts

"The Judge Accepted That Mrs Schestowitz Had Been the Subject of a Vicious Campaign of Online Harassment"
That's consistent with how they men treat women
Intercontinental Brigading - Part XXX - Breaking This Year’s Election Process With Bug Doors in Restricted Boot
Thankfully here in the UK we typically still vote with paper and pencil
 
Intercontinental Brigading - Part XXXIII - Shooting the Messenger is a Presidential Tactic
why our ministers are looking for ways to fix the law.
A Geminispace Tally
That's not the Web, it is an alternative to it
Andy's Latest Writings About Proton CEO Andy Yen, "JavaScript Required", and Slavery in Technology
Andy (of The Cyber Show) has some new material
Intercontinental Brigading - Part XXXII - Malfunctions Reported in Windows Voting Machines (as Usual)
"There are always problems," Ryan told us
Gemini Links 04/11/2026: GoAccess, Adopting Gopher, and Twisty Passages
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, November 03, 2026
IRC logs for Tuesday, November 03, 2026
Intercontinental Brigading - Part XXXI - Microsoft and Promoters of "Secure Boot" Are to Blame
the important thing is that the dictator and Microsoft can remotely control all computers
Links 03/11/2026: Science Around "Near-Death Experiences" and "Do Animals Grieve?"
Links for the day
Gemini Links 03/11/2026: Guitar, 3D-Printable Electric Spinning Wheel, Against Haven Social, and More
Links for the day
Intel Corporation Down Over 51% in One Month, the US Bailout Didn't Work
Is the slop industry [sic] next?
Microsoft European Development Centre (EDC) Next to be Culled?
No time for that anymore
Mass Layoffs at SUSE, Over 10% of Staff Gone
Ignore their excuses
When You're a Software Developer and They Tell You That Your Occupation is Dead or Dying in Order to Sell Dysfunctional Offerings Based on Hype (and Plagiarism)
Disbelief is a strength when companies borrow trillions of dollars to sell a dud and construct a pyramid scheme
Links 03/11/2026: Slop-Tied Debt is Becoming a Crisis (Lenders Panic), "Ukrainian Journalists Urge Global Media Not to Look Away From Russian Aggression"
Links for the day
Malaysia Seems to be Exploring Digital Independence With GNU/Linux and More
not too bad
Microsoft Windows is Crashing in Republic of South Korea
Like in Japan, they seem to be shutting the lid on decades of Microsoft-isms
Think Less, Aim for Less (When It Comes to Hardware)
An abundance of hardware being wasted on a pyramid scheme will become a cautionary tale one day
Gemini Links 03/11/2026: Stargazing, Linux-Powered Prism "Ambient Computer", and Abandoning Streaming Disservices
Links for the day
GNU/Linux Made Big Strides in Portugal This Year
Microsoft had many layoffs in Portugal in recent years
GNU/Linux in Argentina Now Measured at 8% "Market Share"
Argentina is known for exporting skilled footballers, not advanced technology, but it has a large population, which we can hope will dump Windows
Microsoft is Borrowing Loads of Money While Telling 60,000 Workers to Take the "Offer" and Leave, Microsoft Wants Bailouts From the Dictator
Vote in elections and also vote with your wallet
Microsoft and Spoilt Food
Some whistleblowers may be needed here
Intercontinental Brigading - Part XXIX - Undermining US Election While Engaging in Lawfare in England (BBC) Against Publishers That Cover Anti-Election Violence
The elephant in the room is back doors in voting machines
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, November 02, 2026
IRC logs for Monday, November 02, 2026
Links 02/11/2026: Bracing for US Election and New Zealand Has November 7 Election
Links for the day
Gemini Links 02/11/2026: Beginning With Gemini Protocol, Looking for CoCs, and Slop for Local Data
Links for the day
NDA-Compatible PIPs and RAs at IBM Red Hat
We welcome Red Hat whistleblowers who can share with us the NDA/s passed their way
The Tower of Babel
More is not better
When Large American "Tech" Companies Can No Longer Complete Payroll
In spite of several very large waves of Dell layoffs, which the media reported on, it seems like they are still experienceng payroll problems, maybe that's why money is being borrowed
GNU/Linux Rises in African's Largest Population
15% in Nigeria [...] A country with over 200 million people
The Register MS Has Just Published a Fake Article With "AI" 28 Times in the Page (Communist Party of China Entity Paid for That)
In IRC, someone has just pointed out that an article at The Register MS repeats Microsoft's lies about its financial situation
Windows Down to All-Time Low, Says statCounter, While Microsoft Tells 60,000 Workers They're No Longer Necessary
Microsoft must be feeling "salty" right now
A British Uphill Battle to Eliminate Microsoft and Its American Back Doors
There are places of work and homes where GNU/Linux is installed and regularly used, not as a mere hobby but as a hyper-productive, practical tool
Writing for Good
The Web has an abundance of junk
Technical Coverage of US Elections
When elections are done by computers and decided by computers it becomes a tech issue
By Killing the "Linux News Section" in Softpedia (the Most Popular Section, Based on Its Editor) Softpedia Killed Itself
Enjoy Ballmer
Linkspam in "It's FOSS" Today (and It's Not Even FOSS)
free-to-access ad for some dodgy companies and the URLs are 'tampered' for cashback
Links 02/11/2026: Slop Destroying Mathematics and "Democracy is Not on the Ballot" (in US)
Links for the day
Celebrating Photography, Celebrating Life, Celebrating Magnificent Humanity, Not Plagiarism Disservices
Any time we adopt or spread slop imagery we are participating in the problem
Year-Long Celebration Starts on Saturday
This coming Saturday we turn 20
Intercontinental Brigading - Part XXVIII - Microsoft Doesn't Want People to Speak About Microsoft-Controlled Restricted ('Secure') Boot, a Silent Injustice and Back Door/Kill Switch
Can we please stop treating this as normal or acceptable?
On Desktops/Laptops, Clownflare Sees Windows at Under 60% and GNU/Linux at 15% This Past Weekend
Impressive if accurate
Microsoft Lunduke is Slop
Microsoft Lunduke is just trying to stir up hatred
Intercontinental Brigading - Part XXVII - Shooting the Messengers (People Who Oppose Microsoft Back Doors), Even Across the Atlantic
Keep this in mind later this week when a dictator either discredits the voting or covertly tampers with the voting process
Microsoft Wants 60,000 Employees Gone (One Way or Another)
At IBM, 15% of staff got marked as candidates for removal; at Microsoft it's almost 30%
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, November 01, 2026
IRC logs for Sunday, November 01, 2026
Jean-Claude Van Linus
Claude talking?