06.02.18

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Team UPC Turns to a Spanish ‘Flavour’ of Unitary Patent Propaganda (Just Like Last Year)

Posted in Europe, Patents at 9:38 am by Dr. Roy Schestowitz

“Say what?!”

Don Quixote

Summary: Team UPC has found something new to latch onto in an effort to perpetuate the perception of UPC progress (something which came to a stop/halt a long time ago)

Last year (just over a year ago) IAM and others said that Spain was about to ratify the UPC or something to that effect; all this just because of something that someone had said. Suffice to say, as is typical among Team UPC, truth and expectation are totally different things.

At risk of stepping inside politics again, yesterday this thing happened in Spain. We don’t wish to go into it, at least not this time, because we prefer to focus on patents. But somehow Team UPC exploited it for its toxic agenda, even before it actually happened. This is already being spun by Team UPC, notably IAM again. Remember that IAM was paid by the EPO’s PR firm for UPC lobbying, even in the US. Unitary Patent – like the EPO itself – corrupts the media.

“Remember that IAM was paid by the EPO’s PR firm for UPC lobbying, even in the US.”Before the news even came from Spain IAM wrote: “Possible change of government in Spain today. Should that happen it will be interesting to see whether the country’s UPC position alters. PSOE has given every indication of being a lot more sympathetic than PP has been. Ciudadanos has not said much, but is very pro-EU.”

“UPC is dead,” I told them, “get over it. And it’s not because of Spain but because of the UK (Brexit) and Germany (the Unitary Patent lobbyists break laws and constitutions)…”

Spain should continue to deny (reject) the Unitary Patent which threatens to devastate SMEs all across Europe. The views of Spanish companies don’t magically change with a change of government. And besides, Spain does not matter to the Unitary Patent; it’s just used by Team UPC as a distraction and illusion of momentum (because it stalled). They’ve long used this trick.

“Whether it’s “willing to join” or not, the Spanish businesses do not want it and the UPCA is stuck anyway, so they would be wasting their time bothering with such a process. Spain is not a required signature; Germany is.”“With PSOE in power in Spain,” one person rushed to say, “UPC ratification is a matter of days…”

Not at all.

Someone else wrote about it in Spanish [1, 2] and a UPC booster (citing that) wrote: “It is reported that the new Spanish government is willing to join the UPC. This would render the UPC system substantially more attractive. It is to be seen if the government (without own majority) can convince the Spanish parliament.”

Whether it’s “willing to join” or not, the Spanish businesses do not want it and the UPCA is stuck anyway, so they would be wasting their time bothering with such a process. Spain is not a required signature; Germany is. So it’s not about Spain at all.

We can understand that Team UPC (even in Spain) is desperate for the UPC because it would mean a lot of frivolous litigation and thus business for them; but it’s not happening. We have been seeing these prophecies and projections time and time again for a number of years. And where are we now? Brexit remains an issue, Germany isn’t ratifying, and there’s barely any progress to report anywhere in Europe (Bristows scrapes the bottom of the barrel in nations with only dozens of European Patents).

“There are no trivial workarounds; they would need to start the whole process all over again. Unless they blatantly cheated, whereupon the constitutional violations would be further exacerbated.”Regarding British ratification, we already wrote more than half a dozen posts explaining that it had been expected since 2016 (a promise was made) and yet still — a couple of years later — Brexit remains a major barrier to any implementation of UPC. There are no trivial workarounds; they would need to start the whole process all over again. Unless they blatantly cheated, whereupon the constitutional violations would be further exacerbated.

Even a month later (after a rather awkward ratification) Morrison & Foerster LLP wrote this self-serving nonsense that’s supposed to give us the impression that Brexit is not a problem and Germany is just waiting to ratify. Yesterday we saw STA Law Firm, writing about UPC late in the week (on a Friday), still attempting to make it all seem like a certainty with future tense (“will”). Only way down in the article they’re trying to discuss obvious obstacles;

The Unitary Patent Court – caution ahead!

[...]

Post-Brexit Consequences

With Brexit casting its shadow over EU, it is making it difficult to understand how specific this decision of ratifying UPC will turn out for the UK. In spite of the fact that the UPC Agreement is (entirely) a global agreement as opposed to EU law, it remains an open analysis concerning whether the UK can lawfully continue as an individual from the UPC framework after Brexit, or significantly whether it will look to do as such. UK is in plans to leave the EU in March 2019 which would imply that a unitary patent framework without the UK would be less appealing which would put the entire idea of the unitary patent court in peril. The UK government has clarified in its Brexit policy document that it will bring a termination of the implication of CJEU in the UK and EU agreements will no longer apply to the UK. This clarification creates a hazy subject around the whole idea of whether legally or politically, how the UK could remain included and possibly still be liable to the EU courts.

London is one of the three expected locations for the establishment of UPC’s Central Division. However, criticism surrounds the eventual fate of a London-based court. After Brexit, will the EU leave a lofty EU foundation sitting in a non-EU nation? If the UK figures out how to keep on participating in the UPC after Brexit, which is a long shot then conceivably the court will remain, and life sciences organizations would contest licenses that cover the whole EU in the London court.

The fate of the UPC framework remains in the air and corporations need to plan for all projections, whether UPC with UK or UPC without the UK. Whatever the result, patenting and litigation strategies depend on careful formulation with all possibilities especially with the political instability.

The German Question: Answer yet Awaited

For UPC to establish in the EU; three member-states are required to ratify the agreement including UK, France, and Germany for it to officially commence. If all goes well with the UK approving the agreement, the constitutional issues that surround Germany is also a vital reason which has stalled the ratification of UPC Agreement. The matter will take a while before UPC takes its charge in the EU, regardless of UK’s post-Brexit consequences.

Well, this is the classic echo chamber of Team UPC at work; they just keep repeating one another, giving one another hope and then hoping that their optimism can mislead politicians. The way things stand at the moment, the UPC isn’t taking off. Don’t let Team UPC sites (sites like IAM and Managing IP, which stopped its “UPC Progress” reports) fool the world. We suppose that tomorrow, as usual, Joff Wild will write something about it. How ludicrous a headline remains to be seen…

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