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 21/4/2019: SuperTuxKart's 1.0 Release, Sam Hartman Is Debian’s Newest Project Leader (DPL)

    Links for the day



  2. The EPO's Use of Phrases Like “High-Quality Patent Services” Means They Know High-Quality European Patents Are 'Bygones'

    The EPO does a really poor job hiding the fact that its last remaining objective is to grant as many European Patents as possible (and as fast as possible), conveniently conflating quality with pace



  3. A Reader's Suggestion: Directions for Techrights

    Guest post by figosdev



  4. Links 20/4/2019: Weblate 3.6 and Pop!_OS 19.04

    Links for the day



  5. The Likes of Chartered Institute of Patent Attorneys (CIPA), Team Campinos and Team UPC Don't Represent Europe But Hurt Europe

    The abject disinterest in patent quality and patent validity (as judged by courts) threatens Europe but not to the detriment of those who are in the 'business' of suing and printing lots of worthless patents



  6. The Linux Foundation Needs to Change Course Before GNU/Linux (as a Free Operating System) is Dead

    The issues associated with the Linux Foundation are not entirely new; but Linux now incorporates so many restrictions and contains so many binary blobs that one begins to wonder what "Linux" even means



  7. Largest Patent Offices Try to Leave Courts in a State of Disarray to Enable the Granting of Fake Patents in the US and Europe

    Like a monarchy that effectively runs all branches of government the management of the EPO is trying to work around the judiciary; the same is increasingly happening (or at least attempted) in the United States



  8. Links 19/4/2019: PyPy 7.1.1, LabPlot 2.6, Kipi Plugins 5.9.1 Released

    Links for the day



  9. Links 18/4/2019: Ubuntu and Derivatives Have Releases, digiKam 6.1.0, OpenSSH 8.0 and LibreOffice 6.2.3

    Links for the day



  10. Freedom is Not a Business and Those Who Make 'Business' by Giving it Away Deserve Naming

    Free software is being parceled and sold to private monopolisers; those who facilitate the process enrich themselves and pose a growing threat to freedom in general — a subject we intend to tackle in the near future



  11. Concluding the Linux Foundation (LF) “Putting the CON in Conference!” (Part 3)

    Conferences constructed or put together based on payments rather than merit pose a risk to the freedom of free software; we conclude our series about events set up by the largest of culprits, which profits from this erosion of freedom



  12. “Mention the War” (of Microsoft Against GNU/Linux)

    The GNU/Linux desktop (or laptops) seems to be languishing or deteriorating, making way for proprietary takeover in the form of Vista 10 and Chrome OS and “web apps” (surveillance); nobody seems too bothered — certainly not the Linux Foundation — by the fact that GNU/Linux itself is being relegated or demoted to a mere “app” on these surveillance platforms (WSL, Croûton and so on)



  13. The European Patent Office Does Not Care About the Law, Today's Management Constantly Attempts to Bypass the Law

    Many EPs (European Patents) are actually "IPs" (invalid patents); the EPO doesn't seem to care and it is again paying for corrupt scholars to toe the party line



  14. The US Supreme Court (SCOTUS) Once Again Pours Cold Water on Patent Maximalists

    Any hopes of a rebound or turnaround have just been shattered because a bizarre attack on the appeal process (misusing tribal immunity) fell on deaf ears and software patents definitely don't interest the highest court, which already deemed them invalid half a decade ago



  15. Links 17/4/2019: Qt 5.12.3 Released, Ola Bini Arrested (Political Stunts)

    Links for the day



  16. Links 16/4/2019: CentOS Turns 15, Qt Creator 4.9.0 Released

    Links for the day



  17. GNU/Linux is Being Eaten Alive by Large Corporations With Their Agenda

    A sort of corporate takeover, or moneyed interests at the expense of our freedom, can be seen as a 'soft coup' whose eventual outcome would involve all or most servers in 'the cloud' (surveillance with patent tax as part of the rental fees) and almost no laptops/desktops which aren't remotely controlled (and limit what's run on them, using something like UEFI 'secure boot')



  18. Reader's Claim That Rules Similar to the Code of Conduct (CoC) Were 'Imposed' on LibrePlanet and the FSF

    Restrictions on speech are said to have been spread and reached some of the most liberal circles, according to a credible veteran who opposes illiberal censorship



  19. Corporate Media Will Never Cover the EPO's Violations of the Law With Respect to Patent Scope

    The greed-driven gold rush for patents has resulted in a large pool of European Patents that have no legitimacy and are nowadays associated with low legal certainty; the media isn't interested in covering such a monumental disaster that poses a threat to the whole of Europe



  20. A Linux Foundation Run by People Who Reject Linux is Like a Children's Charity Whose Management Dislikes Children

    We remain concerned about the lack of commitment that the Linux Foundation has for Linux; much of the Linux Foundation's Board, for example, comes from hostile companies



  21. Links 15/4/2019: Linux 5.1 RC5 and SolydXK Reviewed

    Links for the day



  22. Links 14/4/2019: Blender 2.80 Release Plan and Ducktype 1.0

    Links for the day



  23. 'Poor' (Multi-Millionaire) Novell CEO, Who Colluded With Steve Ballmer Against GNU/Linux, is Trying to Censor Techrights

    Novell’s last CEO, a former IBMer who just like IBM decided to leverage software patents against the competition (threatening loads of companies using "platoons of patent lawyers"), has decided that siccing lawyers at us would be a good idea



  24. Guest Post: The Linux Foundation (LF) is “Putting the CON in Conference!” (Part 2)

    Calls for papers (CfP) and who gets to assess what's presented or what's not presented is a lesser-explored aspect, especially in this age when large corporate sponsors get to indirectly run entire 'community' events



  25. Patent Maximalists Are Enabling Injustices and Frauds

    It's time to come to grips with the simple fact that extreme patent lenience causes society to suffer and is mostly beneficial to bad actors; for the patent profession to maintain a level of credibility and legitimacy it must reject the deplorable, condemnable zealots



  26. Further Decreasing Focus on Software Patents in the United States as They Barely Exist in Valid Form Anymore

    No headway made after almost 4 months of Iancu-led stunts; software patents remain largely dead and buried, so we’re moving on to other topics



  27. Links 13/4/2019: Wine 4.6 and Emacs 26.2 Released

    Links for the day



  28. Links 12/4/2019: Mesa 19.0.2, Rust 1.34.0 and Flatpak 1.3.2 Released

    Links for the day



  29. Caricature: EPO Standing Tall

    A reader's response to the EPO's tall claims and fluff from yesterday



  30. The EPO is Slipping Out of Control Again and It's Another Battistelli-Like Mess With Disregard for the Rule of Law and Patent Scope

    The banker in chief is just 'printing' or 'minting' lots and lots of patents, even clearly bogus ones that lack substance to back their perceived value


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