05.24.18
Posted in Site News at 11:54 pm by Dr. Roy Schestowitz
Summary: Today, May 25th, the European General Data Protection Regulation (GDPR) goes into full effect; we hereby make a statement on privacy
AS a matter of strict principle, this site never has and never will accumulate data on visitors (e.g. access logs) for longer than 28 days. The servers are configured to permanently delete all access data after this period of time. No ‘offline’ copies are being made. Temporary logging is only required in case of DDOS attacks and cracking attempts — the sole purpose of such access. Additionally, we never have and never will sell any data pertaining to anything. We never received demands for such data from authorities; even if we had, we would openly declare this (publicly, a la Canary) and decline to comply. Privacy is extremely important to us, which is why pages contain little or no cross-site channels (such as Google Analytics, ‘interactive’ buttons for ‘social’ media etc.) and won’t be adding any.
Shall readers have any further questions on such matters, do not hesitate to contact us. █
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Posted in Europe, Finance, Patents at 11:31 pm by Dr. Roy Schestowitz
Last week: Système Battistelli (ENArque) at the EPO is Inspired by Système Lamy in Saint-Germain-en Laye
Summary: The EPO‘s entrance into the “toxic loans” trap as of a few months back (just like in Saint-Germain*) is a sign of potential trouble ahead; The SIDRU “toxic loan” débâcle is highlighted as per criticism of mayor Lamy (St Germain-en-Laye, where Battistelli is deputy mayor) from local opposition groups
Following the judgment of the Court of Appeal of Paris which found SIDRU liable for all of the outstanding debts and interest charges on its DEPFA loan, the former SIDRU chairman Emmanuel Lamy was obliged to defend himself at the meeting of the municipal council of St Germain-en-Laye which took place on 16 November 2016.
According to a commentary on the affair written by Jean-Claude Merle, a former municipal councillor of the neighbouring municipality Marly-le-Roi, Lamy tried to evade the question of his personal responsibility for the débâcle by referring to the collective responsibility of the 15 municipal councils that are the stakeholders of SIDRU as well as to the roles of other authorities such as the regional Prefect and the regional Chamber of Auditors.
“Following the judgment of the Court of Appeal of Paris which found SIDRU liable for all of the outstanding debts and interest charges on its DEPFA loan, the former SIDRU chairman Emmanuel Lamy was obliged to defend himself at the meeting of the municipal council of St Germain-en-Laye which took place on 16 November 2016.”See “Emprunts toxiques du SIDRU, qui paiera ?” [Translation: “SIDRU’s toxic loans, who is going to foot the bill?”]
As for the financial consequences Lamy tried to reassure the taxpayers of St Germain-en-Laye that the financial consequences of Court of Appeal judgment were being discussed by the affected urban agglomerations with a shared will to define “a course of action that would not impact the level of local taxes of the 200,000 inhabitants concerned”.
Without providing precise details he indicated that the two urban agglomerations of Grand Paris Seine et Oise (covering 73 municipalities and more than 400 000 inhabitants) and Saint Germain Boucles de Seine (covering 20 municipalities and 340 000 inhabitants) could be relied upon to absorb the fallout from SIDRU’s toxic loans (which directly affected 200,000 inhabitants).
“Doit-on spéculer avec l’argent public?”
“According to a commentary on the affair written by Jean-Claude Merle, a former municipal councillor of the neighbouring municipality Marly-le-Roi, Lamy tried to evade the question of his personal responsibility for the débâcle by referring to the collective responsibility of the 15 municipal councils that are the stakeholders of SIDRU as well as to the roles of other authorities such as the regional Prefect and the regional Chamber of Auditors.”The local left-wing opposition group Saint-Germain Autrement, formerly Saint-Germain Gauche Plurielle, has been a longtime and persistent critic of Lamy’s management of SIDRU and his imprudent dabbling in speculative “financial instruments”.
As far back as July 2007 the group published a short party political statement in the local Journal de Saint-Germain under the title “Doit-on spéculer avec l’argent public?”.
See below (click to ‘zoom’ in).
In this statement the group expressed its serious concerns about the speculative nature of the financial contracts concluded by Lamy in his role as chairman of SIDRU and warned of the potential for losses of the order of several millions of Euros for the public purse.
“In this statement the group expressed its serious concerns about the speculative nature of the financial contracts concluded by Lamy in his role as chairman of SIDRU and warned of the potential for losses of the order of several millions of Euros for the public purse.”Throughout the remainder of 2007 the group published a series of articles on its website presenting a detailed analysis of the situation at SIDRU and the risks involved, e.g. [1, 2, 3, 4, 5, 6].
One of the leading figures in the group’s campaign for transparency about SIDRU’s finances and its criticism of Lamy’s speculative use of public funds is Emmanuel Fruchard (pictured below), a financial analyst by profession, who has been fêted in the local press as “the sworn enemy of toxic loans”.
Some video footage of the “two Emmanuels” – Fruchard and Lamy – each presenting his own view of the SIDRU affair can be found in an online report from 2011 by a freelance French journalist, Mélanie Houé.
“One of the leading figures in the group’s campaign for transparency about SIDRU’s finances and its criticism of Lamy’s speculative use of public funds is Emmanuel Fruchard…”After its initial series of articles in 2007 the Saint-Germain Autrement group continued to monitor the situation at SIDRU over the course of the next decade and regularly published updates on its website.
In November 2016 in response to the judgment of the Court of Appeal of Paris, the group published a statement in the “Free Opinion” column of issue no. 697 [PDF] of the JSG in which it spoke in terms of a “damning judgment” against Lamy: “SIDRU: le jugement accable E. Lamy”.
“Monsieur le Président, expliquez-vous”
Criticism of Lamy’s management of SIDRU has also come from the local conservative opposition group Agir pour Saint-Germain whose members include the former Deputy Mayor, Anne Gommier.
“Criticism of Lamy’s management of SIDRU has also come from the local conservative opposition group Agir pour Saint-Germain whose members include the former Deputy Mayor, Anne Gommier.”Ms Gommier had already expressed a general dissatisfaction with Lamy’s political style in an interview given to the local press during the 2014 municipal election campaign.
On that occasion she spoke of an unacceptable “disconnect” with the local populace as well as problems with a lack of transparency and consultation.
“On that occasion she spoke of an unacceptable “disconnect” with the local populace as well as problems with a lack of transparency and consultation.”She also deplored the way in which the municipal council had been turned into a rubber-stamping chamber: “Le conseil municipal est une chambre d’enregistrement”.
In October 2016 the Agir pour Saint-Germain group joined in the chorus criticising Lamy’s handling of the SIDRU affair. It published a statement in the “Free Opinion” column of issue no. 695 [PDF] of the Journal de Saint-Germain under the title “La Dette du SIDRU: un mauvais suspense” which could be translated freely into English as “SIDRU’s debt: the suspense is killing us”.
In this statement the group complained that although the annual report of SIDRU had been placed on the agenda for the municipal council meeting of 29 September 2016 there had in fact been no discussion at the meeting and the council had not been informed of the state of SIDRU’s finances. They referred to estimated losses of the order of € 70 million from SIDRU’s toxic loans (€ 20 million from the DEPFA loan and € 50 million from a second loan with Natixis). In view of Lamy’s status as a graduate of the illustrious Institut d’études politiques de Paris (Sciences PO) and the Ecole Nationale d’Administration, a former advisor to the Minister of Finance and someone who had held a senior position in the Finance Ministry (“Bercy”), one could only surmise that he must have known the risks involved. But irrespective of whether or not he was aware of the risks, in the end it was the local taxpayers who were the “turkeys” (“dindons de farce”) left to foot the bill.
“In view of Lamy’s status as a graduate of the illustrious Institut d’études politiques de Paris (Sciences PO) and the Ecole Nationale d’Administration, a former advisor to the Minister of Finance and someone who had held a senior position in the Finance Ministry (“Bercy”), one could only surmise that he must have known the risks involved.”In November 2016, following the judgment of the Court of Appeal of Paris, the group published a further statement in the issue no. 697 of the JSG under the title “Monsieur le Président, expliquez-vous” in which it strongly criticised the use of public monies for speculative purposes and called on Lamy to account for his actions as the chairman of SIDRU at the time when the DEPFA loan contract was signed.
In December 2016 the group published a follow-on statement in the JSG [PDF] under the title of “Illusions, Désillusions” which could be translated into English as “Illusions and rude awakenings”.
Starting off with an ironic reference to the famous picture (at the top of this article) of “the Conjurer” by the Dutch Renaissance painter Hieronymous Bosch which was on display in Saint-Germain as part of an exhibition of his works, they repeated their criticism of Lamy’s financial conjuring tricks at SIDRU (the “illusion”) and referred to the findings of the Court of Appeal of Paris (the “rude awakening”).
“But irrespective of whether or not he was aware of the risks, in the end it was the local taxpayers who were the “turkeys” (“dindons de farce”) left to foot the bill.”They deplored the fact that despite repeated calls for Lamy to account for his role in the affair he had not seen fit to offer an apology for his mistakes nor had he even made any attempt to explain himself: “Et pourtant, au Conseil Municipal comme au Conseil Communautaire, le Maire interpellé par notre groupe sur ses erreurs et sa responsabilité n’a pas daigné faire amende honorable, ni même s’expliquer.”
[Translation: “And yet, in the municipal council as in the communal council the Mayor, having been questioned by our group about his mistakes and his responsibility, did not deign to make amends, nor even explain himself.”]
“The concluding advice given to the citizens of Saint-Germain was to pay attention to the lesson of Bosch’s painting and not to be gullible spectators who passively watched as their quality of life was whittled away by the deceit and legerdemain of others.”After referring to a number of other contentious local issues, they asked how many more “bad tricks” remained to be pulled out of the conjurer’s bag: “Combien de mauvais tours encore dans le sac ?”
The concluding advice given to the citizens of Saint-Germain was to pay attention to the lesson of Bosch’s painting and not to be gullible spectators who passively watched as their quality of life was whittled away by the deceit and legerdemain of others. █
__________
* An article by Carmen Nobel, senior editor of Harvard Business School Working Knowledge, provides some additional background information about the “toxic loan” crisis in France. We covered that in previous parts and would like to highlight some selected bits:
A new study by Boris Vallée and Christophe Pérignon offers evidence that local politicians in France (and probably elsewhere) used high-risk loans for political gain in the years leading up to the recent financial crisis. The strategy worked: Toxic loans helped mayors get reelected.
[...]
The researchers focused their study on France, having gained access to two valuable data sets: The first contained the entire debt portfolio for most of the 300 largest French local governments as of December 31, 2007; and the second contained the loan-level data for all the outstanding structured transactions of Dexia, the leading bank in the market as of December 31, 2009. (Shortly thereafter, Dexia fell apart in the European debt crisis.) The data showed that so-called structured loans accounted for 20.1 percent of the 52 billion euros in total debt for the municipal sample.
Similar to subprime mortgages, structured loans usually carry a few years of guaranteed low interest, which allows local governments to reduce the cost of their debt quickly and obviously. But after the honeymoon period, these loans end up carrying highly variable interest rates resulting from exotic exposures. For example, the City of Saint-Etienne saw the interest rates on one of its major loans rise from 4 percent to 24 percent in 2010, due to the depreciation of the pound sterling. In total, losses on toxic loans doubled the city’s debt levels.
[...]
Toxic loan transactions were especially frequent for incumbent politicians running in “swing” areas. Incumbent politicians running in politically contested areas (where the local government had been ruled by the same party for fewer than 10 years) were more inclined to use structured loans than those in political strongholds (where the ruling party had been in power for more than 20 years).
Vallée and Pérignon analyzed how the politicians used the loans—whether they had invested the money in equipment or services for the city, or used the cash to lower taxes for their constituents, or both. It turned out that for the most part, they had used the short-term savings from the loans to lower taxes. “This action is consistent with politicians seeking reelection by catering to taxpayers’ preference for low taxes, which represents a likely channel for the previous result on the effects on reelection,” the researchers write.
The strategy apparently worked. Controlling for potential selection effects, the researchers found that using structured loans led to an increase in the likelihood that a politician was reelected.
[...]
“These financial innovative products appear, therefore, to have aligned banks’ incentives, as the transactions were highly profitable, with local politicians [who] had an interest in getting reelected,” Vallée says. “However, this happened at a large cost to the taxpayer, as the positive effects of the loans were short-lived, and interest on toxic loans ballooned when the crisis hit.”
In the wake of the financial crisis, many local politicians filed suits against their banks, claiming that they had not comprehended the risky nature of the loans they undertook.
[...]
That said, the researchers did assess the role of financial sophistication on the use of structured loans. They considered the size of each municipality, understanding that larger governments were more likely to employ specialized financial advisors. And they obtained the mayors’ current or former occupations, educational backgrounds, and age at the time of election.
The data suggested that mayors with the most-educated backgrounds were actually more likely to take out structured loans than those with less education. Those who took out the most structured (or toxic) loans had worked previously as corporate executives or senior-level civil servants. Former blue-collar workers, farmers, and artists, on the other hand, largely stayed away from these products.
The likelihood to use structured and toxic loans increased with local government size, indicating that bad loan decisions couldn’t be blamed on a lack of staff expertise. Meanwhile, the use of structured loans decreased with the mayors’ ages. “This was not a senility effect,” Vallée says.
[...]
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Posted in Europe, Patents at 10:05 pm by Dr. Roy Schestowitz
Related: Leaked E-mails From the EPO’s Roberto Vacca Reveal That Patent Quality at the European Patent Office Has Become Farcical
Summary: Cartoon which circulates in EPO ‘circles’, encapsulating the concern many people have about the quality of granted patents and unrealistic expectations from the management
Battistelli crushed the EPO and ended patent quality while appeals are being made even harder. See yesterday’s “Comments To The Revision Of The Rules Of Procedure Of The Boards Of Appeal Of The EPO,” an article by Johannes Lang (Bardehle Pagenberg). To quote:
Although the proposed revision aims at improving “the efficiency and predictability of appeal proceedings before the Boards of Appeal of the EPO”, it appears doubtful whether these objectives will be achieved. The result may well be overloading first instance proceedings as well as subsequent appeal proceedings by precautionary submissions, and merely shifting the dispute in appeal proceedings from substantive to formal procedural matters without any efficiency gains. Furthermore, the revision runs the risk of losing sight of a reasonable trade-off between predictability and flexibility required in patent granting proceedings.
[...]
Hence, all in all, the new Rules significantly limit the possibilities for amendments already at the beginning of the appeal proceedings, reduce them even more after the initial stage, in particular by requiring prima facie-allowability, and remove them completely after the period set in a communication has expired or the summons to oral proceedings has been notified. Any desirable flexibility of the procedure is now transferred to, and limited by, the Board’s discretion which, however, is to be exercised under strict criteria, notably procedural economy. As a general result, the battleground in appeal proceedings will be shifted even more from a discussion of the merits of a case to formal issues. As has already been pointed out above, we believe that this does not necessarily improve the efficiency of the proceedings. Moreover, it appears that a vital amount of flexibility has been sacrificed in the name of predictability.
What’s worth noting is that even stakeholders like law firms (which typically — at least in the short term — benefit financially from patent maximalism) do generally recognise these issues, not just patent examiners and applicants. Patents that cannot withstand a court’s scrutiny (see US trends over the past couple of years) drain even plaintiffs — not just defendants — financially. Sooner or later applicants lose interest in patents, causing systemic collapse. █
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Posted in Patents at 1:55 am by Dr. Roy Schestowitz
Basically a type of software patents, plus the ‘pop culture’ hype…
Reference: What is the Difference Between a Blockchain and a Database?
Summary: The hoarding of patents on novel-sounding code has reached ridiculous levels; very large corporations and even patent trolls arm themselves with such patents, hoping to make returns by means of litigation or an ‘arms trade’
THE USPTO was quick to embrace buzzwords and hype and so was the EPO (although their choices of acronyms and words vary somewhat). Both have allowed algorithms to become patentable provided some buzzword like “AI”, “cloud” or “4IR” got added.
“It means that the only real solution here is to not grant such patents in the first place (no matter who to).”Yesterday, based on the news (e.g. [1, 2, 3]), patents on surveillance from Walmart became known. They’re being marketed as “Blockchain-based” although nothing there suggests that Section 101 is inapplicable. There were also a couple of articles yesterday about Bank of America (BoA) [1, 2] with its latest “Blockchain Patent”. Well, as reported here a few years back, BoA is hoarding bogus software patents on blockchains (maybe an effort to sue rivals/threats to the status quo). It’s not alone. Notorious patent trolls have been busy trying to lay their hands on these patents. It means that the only real solution here is to not grant such patents in the first place (no matter who to). It’s a disaster in the making, just waiting to happen.
“These entities help distract and detract from actual efforts to reform the system. They even hoard software patents.”Yesterday the Allied Security Trust (AST) made a rebound in the news; we had not heard from it in a long time. In fact we last wrote about it a couple of years ago and quite a bit nearly a decade ago, e.g. [1, 2]. AST is one of those ‘pools’ (or ‘cartels’) which claim to be “defensive”. But there’s no such thing as a “defensive” patent because patents do not work this way. Here is the press release [1, 2] just published by AST in many outlets along with very shallow coverage, e.g. [1, 2].
To quote one such ‘article’:
A coalition of companies, including Alphabet Inc.’s Google and Uber Technologies Inc., is getting ready to buy an array of patents to defend against potential infringement suits.
Allied Security Trust (AST), a nonprofit group that buys patents to protect its members from infringement threats, said it will hold another fixed price patent buy in July.
Like LOT Network, which we wrote about quite a lot lately, Google is a big participant. Who benefits really? This one article about it (from WIPR) speaks of “AI and blockchain” in its headline. AST claims to be a “nonprofit”, but obviously there’s turnover and it’s connected to highly profitable companies. Like OIN, for example, AST serves to perpetuate the status quo rather than tackle it.
How about Fortress IP? A few days ago IAM said that RPX‘s co-founder had moved there. To quote:
According to a recent news report Fortress IP is putting together a $400 million “patent troll” fund in what looks like a significant capital raising exercise. Beyond the amount they’re looking to raise, however, details in the story are relatively scant and it’s not clear if the new fund signals a shift in investment strategy by the group led by RPX co-founder Eran Zur. There has been a rumour in the market for several months that Fortress IP team is looking to build its coffers to maximise opportunities to invest in and lend to patent-rich companies.
They want to “invest in and lend to patent-rich companies.” In other words, very large and wealthy companies with an extensive fleet of lawyers.
What we’re seeing here is a large (and growing) number of shells, led by very gigantic corporations, seeking to ‘protect’ members from patents by playing a shell game. These entities help distract and detract from actual efforts to reform the system. They even hoard software patents. █
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Posted in Deception, Patents at 1:15 am by Dr. Roy Schestowitz
Original
Summary: The stupidity of the patent microcosm, which would like to see everything in the world patented and which would gleefully smear or even sue its critics (the EFF was sued several times for libel over its “Stupid Patent of the Month” series)
GRANTING patents just for the sake of having more granted patents would be missing the point; that should be obvious. The more patents an office grants in error, the lower the perceived value of all. The EPO ignores such common sense, whereas the USPTO belatedly adopts it. A lot of US patents got invalidated in recent years, many of which after lengthy and expensive court battles. This left the perceived value of many others (tested neither by the Patent Trial and Appeal Board nor the courts) low enough to merit no lawsuit or ‘assertion’ attempts.
“A lot of US patents got invalidated in recent years, many of which after lengthy and expensive court battles.”Patent maximalists aren’t happy. Watchtroll is furious and frustrated. It has been posting lots of unrelated cruft/dross lately, not about patents or even so-called ‘IP’. But yesterday Mr. Quinn (Watchtroll himself) was once again quote-mining Iancu — the second time in a week — to smear the status quo in the gradually-healed US patent system. Mr. Quinn then proceeded to his latest attack on judges, courts etc. The headline this time around (yesterday) was: “Did the Supreme Court intentionally destroy the U.S. patent system?”
He has been producing many headlines like this, especially in recent weeks. It is becoming rather laughable at this stage. An outsider who isn’t from the patent microcosm might as well say, “what a stupid blog!”
To us, Watchtroll has always been like the ‘Fox News’ of the patent microcosm.
Speaking of stupid blogs, how about Patently-O, which has been feeding Watchtroll with links? As it turns out, there’s a stupid new lawsuit against the USPTO. “Hyatt has filed a new mandamus action against the USPTO,” Patently-O said yesterday, “as the next step in the 40+ year battle over his microcomputer patent applications. Hyatt has over 300 patents applications pending before the USPTO.”
“To us, Watchtroll has always been like the ‘Fox News’ of the patent microcosm.”So what? Anyone can submit an application. That doesn’t mean anything. Patently-O recently gave attention also to a publicity stunt class-action lawsuit over PTAB. If it suits Patently-O‘s agenda, then hey, why the heck not?
Last but not least, in light of Facebook’s history of patent aggression, the EFF’s Joe Mullin has just announced the latest “Stupid Patent of the Month,” alluding to “poor-quality Internet patents” from Facebook. As Mullin put it:
Earlier this month, Facebook announced that it will wedge its way into an already-crowded corner of online commerce. The social networking site plans to use its giant storehouse of personal data to create a dating service, promising to help users find “meaningful relationships,” not just “hookups,” as Facebook CEO Mark Zuckerberg put it.
It remains to be seen whether Facebook’s new service be a “Tinder-killer” that users flock to, or a flop for a company that’s long been beset with privacy concerns. But there’s one thing Facebook, its competitors, and its detractors should all be able to agree on. When a new dating service launches, it should rise or fall based on whether it can win the trust of users—not an arbitrary race to the Patent Office.
Unfortunately, well before it built and launched an actual dating service, Facebook engaged in just such a race. The company applied for a stupid patent on “social dating” back in 2013, and earlier this year, the Patent Office granted the application.
[...]
To be fair to Facebook, the company may have felt compelled to get its own stupid patent because there are so many other stupid online dating patents out there. In a phenomenon that’s the patent equivalent of “mutually assured destruction,” many tech companies have stockpiled poor-quality Internet patents simply to have a threat to fight off other companies’ poor-quality Internet patents. This arms race, of course, costs many millions of dollars and benefits no one other than patent system insiders.
In the world of online dating, wasteful, anti-competitive patent litigation isn’t just theoretical. Earlier this year, Match Group sued up-and-comer Bumble for patent infringement. The suit was brought shortly after Match reportedly tried to purchase Bumble. And in 2015, Jdate sued Jswipe, accusing their competitor of infringing U.S. Patent No. 5,950,200, which tried to claim the idea of notifying people that they “feel reciprocal interest for each other.” It was a basic patent that sought to encompass just about the whole concept of a dating service.
We cannot stress strongly enough that we’re not against patents; we are pro patent quality. We believe that the number of patents should be limited based on strict scope and merit thresholds. Sites like Watchtroll, on the other hand, want us to believe the lie that the more patents get granted, the better off innovation will be. In practice, overpatenting has the exact opposite effect. People who are genuinely interested in innovation and contribute to innovation often ask for restrictions on patent scope, fearing the prospect of unwanted lawsuits. █
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Posted in Deception, Europe, Patents at 12:29 am by Dr. Roy Schestowitz
The EPO wrote this (below) more than two years ago
Summary: The (in)famous old lie about UPC being “just around the corner” is still being circulated, mainly if not only by patent law firms which stand to benefit from a litigation Armageddon in Europe
“TEAM BATTISTELLI” (EPO management) is expected to lie a lot. About nearly everything. The same goes for “Team UPC,” basically a subset of law firms, primarily those that profit from litigation, patent trolls and so on. These people do not care about Europe; they just want to ensure that Europe keeps attracting lots of ruinous lawsuits, necessitating a lot of lawyers.
“These people do not care about Europe; they just want to ensure that Europe keeps attracting lots of ruinous lawsuits, necessitating a lot of lawyers.”Lies about the Unified Patent Court (UPC) have become very routine. Left unaddressed, many people risk falling for them. Many inside Team UPC already live in an echo chamber, surrounded by mutually-reinforcing messages; they live in a bubble, to put it rather bluntly. Today we present some new examples of it (from earlier this week).
Yesterday, rather unsurprisingly, IP Kat was propping up Team UPC’s Kool-Aid (probably Bristows’) in order to advance the UPC’s agenda. This blog should be renamed “CIPA Kat” as this is what it basically got reduced to after the founder (Jeremy) had left. This is what they wrote:
In the aftermath of the ratification of the UPCA by the UK last month, Kluwer Patent Blog has published an interview with Bruno van Pottelsberghe, Professor at the Solvay Brussels School of Economics and Management and a former chief economist of the EPO. In ‘EU should bring Unitary Patent system under its control’, Van Pottelsberghe discusses the benefits of the Unitary Patent regime to the business community, NPO concerns, German stance, and the role of EPO.
We already wrote several responses to this Kluwer Patent Blog ‘article’; so did many commenters (those that managed to survive the censorship regime of Kluwer Patent Blog — a regime which became even tougher some months ago, shortly after commenters had criticised the UPC and articles about the UPC).
“Lies about the Unified Patent Court (UPC) have become very routine.”In addition to this, some Battistelli-friendly French law firm propped up the UPC in France days prior to Bristows joining in. Surely enough, Stanislas Roux-Vaillard (Hogan Lovells) has just joined in [1, 2] by stating:
Importantly, this Order does not specify which law should be applied by the French courts during the UPC transitional period; it will be for French courts to decide whether they should apply the substantive provisions of the UPC or the French law (the latter solution being the recommendation of the Preparatory Committee’s interpretative note) for issues like the Bolar exemption.
Notice the tenses; they insinuate inevitability and persist with some arrogant certainty that the UPC will actually start and the only remaining questions are some minor technicalities. That is very far from it. Robert Burrows from Bristows is meanwhile obsessing over Bulgaria as if the UPC’s fate has much to do with a small economy without many EPs (32 EPs granted last year and 20 the year prior to that). Merely keeping the perception of momentum?
“Merely keeping the perception of momentum?”An article by Wolfgang Schönig and Robert Grohmann (Morrison & Foerster LLP) has just stated (in the headline even) that “Germany Is Lingering To Ratify” (as if it’s just a matter of time, as per the definition of the word linger). To quote:
While some commentators struggle with how membership of the UPC is compatible with the stated BREXIT aim of “taking back control”, when essentially signing up to a European patent litigation system does exactly the opposite, others emphasise that the UPC is nothing but a logical evolvement of the European Patent Convention, an international patent system that (despite its name) is not exclusive to EU Member States, and that the UPC may be open to non-EU countries, too.
[...]
It remains to be seen whether timing will prevent the UK from participating in the UPC.
It’s not about timing. And the UPC is an EU thing; just check the underlying text. These people keep lying about it because law, to them at least, is just some ‘pesky’ thing to be worked around rather than be respected. The above sentence also puts forth the wrong question, a loaded question. This wrongly assumes or wants us to believe Unitary Patent will happen (and only the UK’s participation is up in the air). It won’t happen and thus the UK’s participation is irrelevant a question/conundrum.
“It won’t happen and thus the UK’s participation is irrelevant a question/conundrum.”Abigail Woodhouse, an attorney from a law firm, persists with using tenses like “will” in relation to the UPC; as though it’s inevitable and likely imminent; From this long new article titled “Patents and trademarks in 2018″:
Woolhouse: On World IP Day, 26 April 2018, the UK became the 16th Member State to ratify the Unified Patent Court Agreement (UPCA), which defines a new two-part patent system comprising the Unitary Patent (UP) and a new court, the Unified Patent Court (UPC). The UP will be a single patent right in up to 25 Member States of the EU and enforceable in the UPC by single judgement effective in all UPCA member states. Importantly, the UPC will also have jurisdiction over conventional European Patents. This system will endure and run alongside the UP, thus requiring proprietors to actively opt-out if they wish to avoid the UPC’s jurisdiction. It is quite possible that the UP and UPC could be in action before Brexit in March 2019. As it now stands, Germany is the only remaining mandatory party required to ratify before the new system can be brought into effect.
But no, the UK cannot participate in such a system and without the UK there’s no UPC; this is in fact one of the considerations to be taken into account by the FCC in Germany. It’s in the constitutional complaint.
“Notice how pretty much all of the above (pro-UPC spin) comes from the legal ‘industry’ as opposed to the real industry which actually makes and sells things.”Do facts no longer matter? These people keep perpetuating falsehoods and myths like “IP” (above), corresponding to a propaganda term, “Intellectual Property” (not the same as actual laws, such as patent law). Stephan Kinsella wrote a great deal about this propaganda term and his latest podcast about it came out yesterday.
The matter of fact is, the UPC would serve nobody but these law firms and their largest clients, many or most of which aren’t even European.
Yesterday, Philipp Cepl and Kokularajah Paheenthararajah (DLA Piper) wrote about Düsseldorf in relation to increase in liability risks. To quote some bits:
In its two recent decisions, the Düsseldorf Higher Regional Court redefined the requirements for the infringement of second-medical-use patents. Besides the cases of “purposeful preparation” of a medicament for the protected use, now, a direct infringement also “in some other way” may be considered if the medicament is objectively suitable for the patented use and the supplier takes advantage of external circumstances, which ensure that the offered medicament is used for the patented purpose. Thus, the recent case law increases liability risks for the infringement of secondmedical-use patents.
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The recent case law of the Düsseldorf Higher Regional Court increases the risks of liability for the infringement of second-medical-use patents since a direct infringement now also has to be taken into account if due to external circumstances it is evident that the medicament will be used for the patented purpose.
The main field of application of this case law are cross-label-use cases as pointed out by the Düsseldorf Higher Regional Court, where only a carve-out will not be sufficient to prevent liability anymore. Besides that, also such cases may become more relevant where guidelines of medical associations or directives (e. g. of the German Joint National Committee or the Medical Chamber) may recommend certain diagnostic or therapeutic procedures, which may not be explicitly mentioned in the SmPC or package leaflet and the execution of which may realize the protected teachings of the patent. Also here it is to be expected that irrespective of the existing patent protection physicians will generally comply with such scientifically justified and practiceoriented recommendations at least insofar as they reflect medical standards.
Imagine how much worse it might (or would) get in Düsseldorf if Team UPC ever got its way and litigious firms/trolls dragged the whole of Europe into such German courts. Also yesterday (afternoon) Thorsten Bausch wrote about the Federal Court of Justice of Germany. A blog colleague wrote about the Court of Appeal of Barcelona (Spain). Both pertain to patent cases — ones in which the only party guaranteed to win is the legal ‘industry’.
Notice how pretty much all of the above (pro-UPC spin) comes from the legal ‘industry’ as opposed to the real industry which actually makes and sells things. That in its own right ought to serve as a reminder of who crafted the UPCA and pushes the hardest for UP/UPC. █
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