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

07.13.18

Constitutionality and CJEU as Barriers, the UPC Agreement (UPCA) is Already Moot in the United Kingdom

Posted in Deception, Europe, Patents at 12:59 am by Dr. Roy Schestowitz

But Team UPC will leap and grab any morsel of hope it can find

Deamworld corporate

Summary: The Unified Patent Court (UPC) isn’t going anywhere and the UK merely “explores” what to do about it; for Team UPC, however, this means that the UK “confirms intention to remain in Unitary Patent system after Brexit” (clearly a case of deliberate misinformation)

POOR Team UPC. Nothing goes their way lately. Their ‘hero’ Battistelli has left the EPO, leaving in charge somewhat of an uncertainty/question mark. Constitutionality challenges (more than one) render the UPC pretty much dead (Team UPC has truly gone bankers over it). This is how media owned by patent law firms (Out-Law.com) covers it this week:

On 29 June, Hungary’s Constitutional Court published a ruling in which it held that the terms of the UPC Agreement are incompatible with Hungary’s constitutional framework.

The Hungarian court took into account the fact that the UPC Agreement is not formal EU legislation but an international treaty formed through the ‘enhanced cooperation’ mechanism provided for under the Lisbon Treaty. It permits nine or more EU countries to use the EU’s processes and structures to make agreements that bind only those countries. It is through the enhanced cooperation mechanism that plans to develop a new unitary patent and UPC regime have been developed.

The Hungarian court said it would be unconstitutional to allow jurisdiction for resolving private legal disputes to transfer from Hungary’s courts to an international institution – the UPC – that is not established within the boundaries of the EU’s founding treaties, according to a summary provided by Hungary’s Intellectual Property Office.

At least 13 EU countries, including the three with the most European patents in effect in 2012 – Germany, France and the UK, must pass national legislation to ratify the UPC Agreement that the countries behind the new system finalised in 2013.

Hungary’s Constitutional Court’s decision can only further embolden Germany’s FCC to do the same. Irrespective of that, there may be more complaints on the way. It’s likely that pretty much every nation that signed/ratified UPCA violated its very own constitution (they never bothered checking). But let’s leave all that aside (for now at least), recalling the very recent statement from the British government that it would depart from CJEU, a core part of UPCA. Do they know what they’re doing? Evidently not. It’s like the typical “Brexit shambles”. There is no Unified Patent Court (UPC), there’s no Brexit, and there’s absolutely no certainty about anything. If the UPC is not constitutional in a number of member states, that further contributes to uncertainty, not to mention what happens in Spain and in Ireland.

Those who follow Team UPC closely enough might have already noticed some “tweets” about a new paper titled “The future relationship between the United Kingdom and the European Union”.

“Hungary’s Constitutional Court’s decision can only further embolden Germany’s FCC to do the same.”“UK’s white paper on future relationship with the EU includes a reference to maintaining membership of the future EU-wide unitary patent system, but no mention at all on how current EU trademarks and designs will be implemented in UK after Brexit,” wrote Robert Harrison about this page.

The text they highlight is very clearly in conflict with other statements, including very recent ones about CJEU. But don’t let “bad” facts get in the way of “good” propaganda, right? This is, after all, Team UPC we’re talking about. Facts matter not.

Max Walters wrote (with a selective screenshot):

UK’s #Brexit white paper confirms intention to stay IN the Unified Patent Court post exit. #patents #UPC

Really? Does the word “confirms” belong here? “They carefully do not mention the CJEU relation here,” Benjamin Henrion immediately told him. They’re basically just contradicting even themselves.

“The text they highlight is very clearly in conflict with other statements, including very recent ones about CJEU.”Some people have spotted that too. “However Luke,” one of them said, “big issue with CJEU red line. Wouldn’t be at all surprised for UK to be part of UPC but lose court. Would be huge loss to UK IP…”

UPC is not a “gain” for the UK; it’s actually a big loss. It has already wasted time and money; they’re assessing something which will never materialise. The person also said: “Yes agreed on the fudge & the position of patents, but the big issue will be when it’s tested in CJEU. Think we may also find Brexiters suddenly ‘finding’ patents when things turn nasty…as they will do. Moot point of course if no deal…”

“UPC is not a “gain” for the UK; it’s actually a big loss. It has already wasted time and money; they’re assessing something which will never materialise.”Managing IP, which participated a great deal in UPC propaganda over the years, said: “The UK government’s new white paper outlines what it wants from intellectual property after it leaves the EU – but some IP professionals feel it doesn’t say enough” (Patrick Wingrove has at least bothered mentioning the critics, noting that the government contradicts itself on this issue).

Here’s what a ‘front group’ of Managing IP wrote:

Observation below. #WhitePaper dealt with geographical indications (EU doesn’t mess around with this) and UPC/unitary patent but nothing on trade marks/designs (incl. Union judicial and administrative procedures, e.g. EUIPO). Also see EU’s progress report https://ec.europa.eu/commission/sites/beta-political/files/joint_statement.pdf … https://twitter.com/rjharrison000/status/1017390820176035840 …

The obvious issues didn’t bother staunch members of Team UPC, who proudly wear a “Team UPC” badge in their tweets (they actually use this term). One of them promoted his own article, titled misleadingly “UK confirms intention to remain in Unitary Patent system after Brexit” (here’s that word again, “confirms”).

Nothing was confirmed. Going back to Out-Law.com, its headline says that “major hurdles remain” and here’s why:

The proposals set out in the paper are worthy of “close consideration” by negotiators, but raise “a series of challenges which will need to be overcome if the deal is to have a chance of being concluded and ratified within the short period of time remaining”, according to Brexit and EU law expert Guy Lougher of Pinsent Masons, the law firm behind Out-Law.com.

“Both sides of the negotiations know that the timeline for negotiations is exceptionally tight,” he said. “There remains three months until the all-important European Council meeting in October which is officially the end of the EU’s negotiating timeline. Major progress needs to be made by then if a deal is to be done and ratified by March 2019.”

“If the challenges can be overcome, a deal may be possible. However, given the scale of the hurdles, businesses should consider that a ‘no-deal’ scenario remains a distinct possibility and should prepare accordingly,” he said.

UPC is not possible (in the UK or anywhere else) for many reasons, among which UPC being unconstitutional and Brexit incompatible.

Different wordings (not “confirms”) were used by other publishers, e.g. “will explore” and “to explore”. There are several headlines to that effect, e.g. “UK will explore staying in the UPC post-Brexit” and “UK to explore Unified Patent Court options in Brexit negotiations [1, 2].

“Even Kluwer didn’t say “confirms”; people who use this word seem rather self-deluding at this point.”“Kluwer Patent blogger” (typically Bristows) said that the “UK intends to stay in the Unitary Patent system post-Brexit” (their headline).

Even Kluwer didn’t say “confirms”; people who use this word seem rather self-deluding at this point.

As for the Bristows-dominated IP Kat, it was covered there not by Bristows but by Eibhlin Vardy, who quoted the relevant passages (highlights are ours):

150. There is a long history of European cooperation on patents, which can be costly to enforce in multiple jurisdictions. Most recently, this includes the agreement on a Unified Patent Court to provide businesses with a streamlined process for enforcing patents through a single court, rather than through multiple courts.

151. The UK has ratified the Unified Patent Court Agreement and intends to explore staying in the Court and unitary patent system after the UK leaves the EU. The Unified Patent Court has a unique structure as an international court that is a dispute forum for the EU’s unitary patent and for European patents, both of which will be administered by the European Patent Office. The UK will therefore work with other contracting states to make sure the Unified Patent Court Agreement can continue on a firm legal basis.

152. Arrangements on future cooperation on IP would provide important protections for right holders, giving them a confident and secure basis from which to operate in and between the UK and the EU.

So they actually use the word “explore”; there’s no confirmation there at all. They rightly take note of the EPO’s role, obviously overlooking all the scandals (including judicial scandals) that take place there.

“They rightly take note of the EPO’s role, obviously overlooking all the scandals (including judicial scandals) that take place there.”All in all, the “tl;dr” version of this “UK government White Paper” (on UPC at least): we don’t know if we can participate in UPC, but we’re checking what we be done. Anything beyond that would be pure spin or an ‘artistic’ interpretation.

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. Links 22/11/2019: Slimbook’s GNU/Linux Laptops, Kubernetes Hype

    Links for the day



  2. Techrights is Still a Team Effort

    Getting involved in what we do is not difficult and it is even encouraged



  3. Guest Post/Off-Topic: Koalas Caught in Australian Bushfire

    Australian volunteers and rescuers need help to rescue helpless animals facing danger



  4. Global Patent Warming

    The old term "Global Patent Warming" comes to mind when one assesses the neoliberal approach of today's EPO, where the sole goal is making piles of money by granting loads and loads of illegal European Patents



  5. IRC Proceedings: Thursday, November 21, 2019

    IRC logs for Thursday, November 21, 2019



  6. Teaser: “Enriching Exchanges”

    Ahead of the fourteenth part in the Breton series this old tweet seems increasingly relevant



  7. Web Site Which Exposed Microsoft Crimes is Gone From the Web, But Copies Still Exist

    Reputation laundering operations of Microsoft tell us that Microsoft is a 'new' and 'reformed' company; but Comes v Microsoft documents serve to show that little has changed



  8. Understanding Thierry Breton: Socialising With the Elite

    "Bernadette Chirac is not the only Presidential widow with whom Valerie has close connections."



  9. Justice Peter Huber Speaking to a Front Group of Team UPC May Compromise the Integrity of the FCC and Its Outcomes

    The public reaction, even from some legal professionals, isn't too positive, seeing how judges from BVerfG (FCC) speak to the mouthpieces of Team UPC (biased and in the pockets of the litigation 'industry')



  10. Injustice at Every Level Would Simply Doom the Entire Patent System

    Repeated failure to restore the Rule of Law and enforce accountability/oversight in Europe's patent system renders the entire system moot; it is a case of adherence to basic constitutional pillars



  11. Understanding Thierry Breton: Thierry and the $100 Billion Man

    Thierry Breton's connections to the tax avoidance ploy of his friend Bernard Arnault



  12. Links 21/11/2019: Mesa 19.3.0 RC4, Canonical SPS

    Links for the day



  13. Links 21/11/2019: Charmed OSM, Mesa 19.2.5, DXVK 1.4.5, Zorin OS 15 Lite

    Links for the day



  14. Understanding Thierry Breton: Atos Healthcare - “The Ugly Face of Business”

    "...2,380 people died after their claim for employment and support allowance (ESA) ended because a work capability assessment (WCA) found that they were found fit for work."



  15. IRC Proceedings: Wednesday, November 20, 2019

    IRC logs for Wednesday, November 20, 2019



  16. Microsoft Tim: Microsoft is Now Defending Linux

    The difference between fiction and reality



  17. Justice Peter Huber of the German Federal Constitutional Court (FCC) Calls 'Bullshit' a Rumour Nobody Really Spreads

    A sort of 'trial by media' (by Team UPC) compromises the integrity of the case (constitutional complaint) and can be interpreted as judges succumbing to lobbying/pressure from those who conspire to violate many constitutions across Europe for personal/financial gain



  18. Understanding Thierry Breton: What Thierry Did Next...

    "Whether by coincidence or not, when Atos announced in 2010 that it would acquire Siemens’ IT unit, it was the 32-year-old Macron at Rothschild who advised Breton on the deal."



  19. Links 20/11/2019: HONOR MagicBook With GNU/Linux, Coreboot 4.11, GNU Health Patchset 3.6.1

    Links for the day



  20. IRC Proceedings: Tuesday, November 19, 2019

    IRC logs for Tuesday, November 19, 2019



  21. EPO Geared Towards Financial Exploitation of Europe Instead of Serving Europe

    For the financial benefit of law firms and patent offices (they profit from processing loads of patents and lawsuits) Europe is being reverted back to Medieval Times when exercising invention and free thought (or free coding) was a luxury of the rich alone



  22. Microsoft and IBM Are the Patent Trolls, They Won't Protect Us From Trolls

    "Microsoft has no taste" and IBM has no taste, either; they're lying to our collective face together with OIN and the 'Linux' Foundation



  23. How Ralph Nader Put It

    Ralph Nader on money in politics



  24. ZDNet (CBS) Associates GNU/Linux Users With ISIS

    Response to "US student was allegedly building a custom Gentoo Linux distro for ISIS," just published by ZDNet and composed by their biggest troll, Catalin Cimpanu



  25. Understanding Thierry Breton: Noël Forgeard and His “Golden Parachute”

    The end of the first half of the Breton series; in this particular part we continue to cover the EADS scandal and the second half of this series will include the EPO connections (the vote in a plenary for Breton's nomination is due 27/11)



  26. Links 19/11/2019: Zswap's B-Tree Search Implementation, WordPress 5.2.4

    Links for the day



  27. We've Already Entered the Era When Patents Should be Presumed Invalid

    The abundance of low-quality patents may mean short-term profits for patent offices and law firms; but we know at whose expense they are profiting and the legitimacy of patent systems suffers as a result



  28. Jean-Luc Breton

    Breton a champion of obstruction and obfuscation



  29. Understanding Thierry Breton: Insider-Trading Scandal at EADS

    Although Breton was not directly implicated in the insider trading scandal itself he did come under fire in 2007 for the role he played in a side-show to the main story, namely the payment of a generous € 8.5m severance package to Noël Forgeard when the EADS co-CEO was compelled to resign in June 2006.



  30. Startpage is Not Denying Its Betrayal of Privacy, It is Just Being Evasive

    They can't call you a liar if you issue a non-denying 'denial'; the "Roll Safe Think About It" meme seems applicable here


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

Recent Posts