EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

05.09.18

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

Posted in Deception, Europe, Patents at 3:38 am by Dr. Roy Schestowitz

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.

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. Good News: US Supreme Court Rejects Efforts to Revisit Alice, Most Software Patents to Remain Worthless

    35 U.S.C. § 101 will likely remain in tact for a long time to come; courts have come to grips with the status quo, as even the Federal Circuit approves the large majority of invalidations by the Patent Trial and Appeal Board’s (PTAB) panels, initiated by inter partes reviews (IPRs)



  2. Florian Müller's Article About SEPs and the EPO

    Report from the court in Munich, where the EPO is based



  3. EPO Vice-President Željko Topić in New Article About Corruption in Croatia

    The Croatian newspaper 7Dnevno has an outline of what Željko Topić has done in Croatia and in the EPO in Munich; it argues that this seriously erodes Croatia's national brand/identity



  4. The Quality of European Patents Continues to Deteriorate Under António Campinos and Software Patents Are Advocated Every Day

    The EPC in the European Patent Office and 35 U.S.C. § 101 in the USPTO annul most if not all software patents; under António Campinos, however, software patents are being granted in Europe and the USPTO exploits similar tricks



  5. Team UPC is Still Spreading False Rumours in an Effort to Trick Politicians and Pressure Judges

    Abuses at the European Patent Office, political turmoil and an obvious legislative coup by a self-serving occupation that produces nothing have already doomed the Unitary Patent or Unified Patent Court (UPC); so now we deal with complete fabrications from Team UPC as they're struggling to make something out of nothing, anonymously smearing opposition to the UPC and anonymously making stuff up



  6. Patents on Life and Patents That Kill the Poor Would Only Delegitimise the European Patent Office

    After Mayo, Myriad and other SCOTUS cases (the basis of 35 U.S.C. § 101) the U.S. Patent and Trademark Office is reluctant to grant patents on life; the European Patent Office (EPO), however, goes in the opposite direction, even in defiance of the European Patent Convention



  7. EPO 'Untapped Potential'

    "Campinos is diligently looking for ways to further increase the Office’s output without increasing the number of examiners," says the EPO-FLIER team



  8. Links 9/12/2018: New Linux Stable Releases (Notably Linux 4.19.8), RC Coming, and Unifont 11.0.03

    Links for the day



  9. Links 8/12/2018: Mesa 18.3.0, Mageia 7 Beta, WordPress 5.0

    Links for the day



  10. The European Patent Organisation is Like a Private Club and Roland Grossenbacher is Back in It

    In the absence of Benoît Battistelli quality control at the EPO is still not effective; patents are being granted like the sole goal is to increase so-called 'production' (or profit), appeals are being subjected to threats from Office management, and external courts (courts that assess patents outside the jurisdiction of the Office/Organisation) are being targeted with a long-sought replacement like the Unified Patent Court, or UPC (Unitary Patent)



  11. Links 7/12/2018: GNU Guix, GuixSD 0.16.0, GCC 7.4, PHP 7.3.0 Released

    Links for the day



  12. The Federal Circuit's Decision on Ancora Technologies v HTC America is the Rare Exception, Not the Norm

    Even though the PTAB does not automatically reject every patent when 35 U.S.C. § 101 gets invoked we're supposed to think that somehow things are changing in favour of patent maximalists; but all they do is obsess over something old (as old as a month ago) and hardly controversial



  13. The European Patent Office Remains a Lawless Place Where Judges Are Afraid of the Banker in Chief

    With the former banker Campinos replacing the politician Battistelli and seeking to have far more powers it would be insane for the German Constitutional Court to ever allow anything remotely like the UPC; sites that are sponsored by Team UPC, however, try to influence outcomes, pushing patent maximalism and diminishing the role of patent judges



  14. Many of the Same People Are Still in Charge of the European Patent Office Even Though They Broke the Law

    "EPO’s art collection honoured with award," the EPO writes, choosing to distract from what actually goes on at the Office and has never been properly dealt with



  15. Links 6/12/2018: FreeNAS 11.2, Mesa 18.3 Later Today, Fedora Elections

    Links for the day



  16. EPO, in Its Patent Trolls-Infested Forum, Admits It is Granting Bogus Software Patents Under the Guise of 'Blockchain'

    Yesterday's embarrassing event of the EPO was a festival of the litigation giants and trolls, who shrewdly disguise patents on algorithms using all sorts of fashionable words that often don't mean anything (or deviate greatly from their original meanings)



  17. The Patent Litigation Bubble is Imploding in the US While the UPC Dies in Europe

    The meta-industry which profits from feuds, disputes, threats and blackmail isn't doing too well; even in Europe, where it worked hard for a number of years to institute a horrible litigation system which favours global plaintiffs (patent trolls, opportunists and monopolists), these things are going up in flames



  18. Links 5/12/2018: Epic Games Store, CrossOver 18.1.0, Important Kubernetes Patch

    Links for the day



  19. Links 4/12/2018: LibrePCB 0.1.0, SQLite 3.26.0, PhysX Code

    Links for the day



  20. EPO Management Keeps Embarrassing Itself, UPC More Dead Than Before, and Nokia Turns Aggressive

    The EPO’s race to the bottom of patent quality continues, it’s now complemented by direct association with patent trolls and law stands in their way (for they repeatedly violate the law)



  21. The Intellectual Property Owners Association (IPO) and IBM Are Part of the Software Patents Problem in the United States

    IBM's special role in lobbying for software patents (and against PTAB) needs to be highlighted; even Ethereum’s co-founder isn't happy about IBM's meddling in the blockchain space (with help from Hyperledger/Linux Foundation)



  22. The Patent Trial and Appeal Board (PTAB) Not Falling for Attempts to Prevent It From Instituting Challenges

    In the face of patent maximalists' endless efforts to derail patent quality the tribunal keeps calm and carries on smashing bad patents



  23. Links 2/12/2018: Linux 4.20 RC5, Snapcraft 3.0, VirtualBox 6.0 Beta 3

    Links for the day



  24. The Patent Microcosm Hopes That the Federal Circuit Will Get 'Tired' of Rejecting Software Patents

    Trolls-friendly sites aren't tolerating this court's habit of saying "no" to software patents; the Chief Judge meanwhile acknowledges that they're being overrun by a growing number of cases/appeals



  25. 35 U.S.C. § 101 Continues to Crush Software Patents and Even Microsoft Joins 'the Fun'

    The Court of Appeals for the Federal Circuit (CAFC) and even courts below it continue to throw out software patents or send them back to PTAB and lower courts; there is virtually nothing for patent maximalists to celebrate any longer



  26. The Anti-Section 101 (Pro-Software Patents) Lobby Looks at New Angles for Watering Down Guidelines and Caselaw

    By focusing on jury trials and patent trolls the proponents of bunk, likely-invalid abstract patents hope to overrule or override technical courts such as the Patent Trial and Appeal Board (PTAB)



  27. Patent Trolls, USPTO Director Andrei Iancu and Section 101

    The world’s most important patent office is now run by a courts-hostile person (an 'American Battistelli') who is happy to ignore the courts’ caselaw and listen to patent trolls instead; this means that science and technology, not to mention the law itself, will suffer



  28. Be Wary of the Latest Lies About the Unified Patent Court (UPC), Courtesy of CIPA and Marks & Clerk (Team UPC)

    It's rather noteworthy that no matter how grim things have become for Team UPC, which drafted and promoted new laws for self-enrichment purposes, these people persist with all the same lies that predate several more barriers, which no doubt will prove fatal to the Unified Patent Court Agreement (UPCA)



  29. Links 1/12/2018: 4MLinux 27.0, GNU Wget 1.20 Released

    Links for the day



  30. EPO Management High-Fiving Patent Propaganda Sites Like 'Managing IP' While Granting Illegitimate Patents on Algorithms

    Having mastered the art of hype and buzzwords, the management of the EPO carries on pretending that it does nothing wrong by rubber-stamping abstract patents on mathematics


CoPilotCo

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

CoPilotCo

Recent Posts