Bonum Certa Men Certa

Perpetuating the Big Lie That Unitary Patent (UPC) is About to Kick Off

The EPO wrote this (below) more than two years ago

UPC



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.

[...]

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.

Recent Techrights' Posts

Microsoft XBox is Dying as More Retailers Stop Stocking It and Massive Layoffs Planned Again
Microsoft is circling down the drain
Linux and the Freedom Paradox
Linux is losing freedom if some external actors who only use Microsoft tools for development wrest control
Watch the FSF Party Live (via Livestream)
It's in WebM format, which is widely supported by now
Advocacy of Software Freedom Changed, LUGs Became Less Relevant
The way we see it, support groups like LUGs sort of outlived their usefulness when it became easier to install GNU/Linux
 
Links 05/10/2025: Slow News Day and Wondering About the Canada Post Walkout
Links for the day
Gemini Links 05/10/2025: Telnet Debugging and The Programmer’s Brain
Links for the day
More Than "Just a Rumour": XBox Seems to Have Just Died
At this point, why would any studio out there target or partner with XBox?
How to Tell Your Community, Project or Company is Being Infiltrated by Saboteurs
How to identify nefarious social engineering
The Fortieth Birthday of the FSF Made Us Extremely Happy
It feels like the 'hacker community' is regrouping to discuss things and prepare for the next Big Challenge
Chat Control 2 Them, Not 2 U
Follow the advice of Dr. Patrick Breyer
Mozilla: Throw Away Your "Old" PC and Enable "Digital Rights Management (DRM)"
This is heading in a bad direction
Controlling Our Computing for Another Forty Years
40 years of freedom
Motivational Small Place to Run Large Sites
We deem this scenery motivational and inspiring
Techrights' Text Version (Daily Bulletin) Turns Five This Month
our plain-text bulletins are turning 5 this month
We'll Continue Covering the Moribund OSI and Other Dysfunctional if Not Hostile Institutions
Stefano Maffulli's departure is due to his defection and due to him failing the mission in pursuit of money (his salary)
Links 05/10/2025: Lufthansa Layoffs (4,000) and More Spotify Woes (Aside From Massive Debt)
Links for the day
The Free Software Foundation's Livestream Has Ended, Video/s Might be Online Next
I've asked whether they'll upload video of some of the event; I still wait for an answer
The Register MS Does Not Know the Difference Between Microsoft GitHub and GitLab
At the time of writing (October 5) the article from "Thu 2 Oct 2025" remains uncorrected
"Bullshit Generators" (What RMS Calls LLMs) and Fake Images Already Target the FSF
Why does Google News promote fake articles about the FSF while omitting all the real ones?
Software Patents as a Bubble
Don't invest resources in hype; if you detect a bubble, run away from it
Links 05/10/2025: Political Leftovers, Climate Change, and Security Incidents
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, October 04, 2025
IRC logs for Saturday, October 04, 2025
For the Second Time in a Few Weeks Microsoft Lunduke Makes False Accusations Against Senior Red Hat Staff to Incite a Despicable 'Troll Army'
Nothing that Microsoft Lunduke claims or says can be trusted
When Microsoft "Integrates" Something With "AI" It Means It's Losing Money and Is Generally Hopeless
how did Bing fare after 36 months of LLM slop being hyped up as "replacement" for search?
Most Certificates Don't Improve Security, They Mostly Increase Downtime (for No Good Reason)
The 'Gemini sites' (capsules) are a growing force
The statCounter Site Has Data Integrity Problems
Maybe we'll get back to statCounter when its data becomes more "stable" again
10 Ways to Combat Software Patents
software patents are loathed also by proprietary software developers
"Just a Little Bit of Meat..."
Free software "absolutism" is not a radical stance, more so if the only "radical" belief the user possesses is that he or she must be in control of his or her software, and by extension his or her computer
Compromised by NVIDIA Proprietary Library
Meanwhile in Boston there are "[r]oundtable talk with FSF volunteers (both in-person and online)"
Red Hat is Ignoring the Free Software Community, It's a "Fortune 1000" Vendor
Red Hat's blog also participates a lot in promoting of Wall Street's latest pump-and-dump "AI" scheme
Free Software Foundation Party Has Begun
We shall be focusing a lot on software patents today
Former Head of the Federal Trade Commission (FTC) Lina Khan Knows Whatever Microsoft Touches Will Die
Just like Skype (as recently as months ago) [...] When Microsoft grabs things, or when it buys things, it almost never ends well
Slopwatch: Fake Articles About LibreOffice in Austria and Wine 10.16
very short
Links 04/10/2025: "attempted Coup" Noted in Facebook, Russia Kills Journalists via Drones
Links for the day
Gemini Links 04/10/2025: Anesthesia and Baudpunk
Links for the day
How Software Patents Were Viewed or Their General Status Changed Over Time
A rough summary
Links 04/10/2025: "Privacy Harm Is Harm", Criticism Outlawed in US
Links for the day
Garmin Uses Linux for Some of the Garmin Products, Now It's Sued by Strava Using Software Patents
Software patents should never have been granted in the first place
Richard Stallman Will Give a Talk in Sweden in 6 Days
Dr. Stallman, despite his battle with cancer is still alive and mentally sharp
FSF Turns 40
We'll be focusing on patent-related topics this weekend
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, October 03, 2025
IRC logs for Friday, October 03, 2025
Gemini Links 04/10/2025: Distro Hopping and "Part Time"
Links for the day
We Are Turning 19 in One Month, FSF Turns 40 in 3 Hours (CET)
For our anniversary next month we still have no concrete plans
Patent Docs (or PatentDocs) Learned the Wrong Lessons From the Death of TypePad
Had they gone ahead with an SSG, they'd become a lot more future-proof
USPTO Patent Bubble Already Imploding, After Decades of Artificial Inflation, Entire Offices Close for Good
we can deduce that financial pressures (lack of "demand" for monopolies) play a role
TikTok is Not Harmless (Being CheeTok in the US Will Advance Orange Agenda)
Social control media isn't "fun and games"; it's a digital weapon that lets hostile groups or nations infiltrate others, then turn them against themselves
Andy Farnell and Helen Plews Explain What "Modern" Tech Does to Old People
Imposing terrible tech "religion" on people is not helping them
Tomorrow the Free Software Foundation (FSF) Turns 40 and Its Web Site is Still Slow Due to DDoS by LLM Slop Bots
For an advocacy group, uptime is important (for its message to remain accessible)
Slopwatch: Google News as a Firehose of LLM Slop About "Linux"
Google News is really bad
Datamation, Where I Used to Publish Articles, Appears to Have Been Sold to TechnologyAdvice Only to Become a Slopfarm
I'd prefer to not associate with that site anymore
Links 03/10/2025: "NPR’s Economics Lessons Come With Neoliberal Spin" and Canada Post at Risk
Links for the day
Gemini Links 03/10/2025: Panic Attacks and Food Adulteration
Links for the day
Links 03/10/2025: Lawyers Caught Using LLM Slop Explain Why They Did It, LibreSSL 4.1.1 and 4.0.1 Released
Links for the day
FSF Board Grew 50% Since Last Year, Has New President, Turns 40 in Two Days
It's a good move for the FSF and - by extension - for software freedom
Links 03/10/2025: Conflicts, Death of TypePad, and TikTok/CheeTok Gives a Boost to Far Right Groups in Europe
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, October 02, 2025
IRC logs for Thursday, October 02, 2025
Slopwatch: Linux Journal, Google News, and LinuxSecurity
They carry on polluting the Web with fake articles
Gemini Links 02/10/2025: Kubernetes With FreeBSD and robots.txt
Links for the day