08.25.18

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The Unitary Patent (UPC) is Not Delayed; It’s Dead and Without Any Major Rework It Will Go Nowhere

Posted in Europe, Patents at 2:48 am by Dr. Roy Schestowitz

Delay

Summary: The Unified Patent Court (UPC) isn’t just delayed but likely canceled; however, people who planned to make a fortune from UPC-centric lawsuits don’t want the public to know that or see it that way

THE EPO hasn’t mentioned the Unitary Patent in nearly two months. António Campinos said something about it in his first week in Office and that’s about it. The EPO does, however, promote software patents every single day now, even at the USPTO. Yesterday the EPO did that thrice (yes, three times!) in one single day, outdoing its usual once or twice per day. In that regard, Campinos is a lot worse than Battistelli.

“The UPC is nowhere near a reality; it’s very, very far from it. Simply put, the UPC isn’t happening. It is already dead. “The Unitary Patent (or UPC) is itself a Trojan horse for software patents, among other bad things. It is a crude and cycnical attempt to bypass national patent laws and even directives against software patents. It’s just insane and no democratic society should allow this to happen. The German Constitutional Court has already taken that abomination to task, but Team UPC keeps pushing two lies which depend on dismissal of a complaint and elimination of lots of other barriers. The UPC is nowhere near a reality; it’s very, very far from it. Simply put, the UPC isn’t happening. It is already dead.

Managing IP, which worked with the EPO on some UPC advocacy/events, has this new article with a loaded headline: “How patent-heavy businesses are planning for the UPC and unitary patent” (as if it’s about to start).

“Counsel at pharmaceutical, telecommunications, car and plastics manufacturers and medical charities tell Managing IP about their considerations for the unitary system,” Managing IP wrote, hiding all the pertinent quotes behind their paywall (so only people who agree with this agenda can read and scrutinise).

“No, there are no “delays” for UPC. The UPC just isn’t happening. Unitary ‘patents’ do not exist and the foreseen framework is already dead. It’s abandoned. Hardly anyone speaks about it.”What Patrick Wingrove does here is that self-fulfilling fantasy-type of propaganda, i.e. pretty much the same old tactic used by Managing IP for a number of years. On almost the very same day another article emerged, this one titled “Bulgaria ratifies the Protocol on Provisional Application of the UPC Agreement but delays still in store for the UPC” (what an incredible understatement, as if it’s only a matter of time).

No, there are no “delays” for UPC. The UPC just isn’t happening. Unitary ‘patents’ do not exist and the foreseen framework is already dead. It’s abandoned. Hardly anyone speaks about it. It’s gone with the wind, gone with Battistelli, whom nobody has heard anything from since he left at the end of June. Herbert Smith Freehills LLP, which is responsible for the above, is just wanting us to think otherwise and being Team UPC opportunists (litigation ‘industry’) they’re looking really hard for signs of UPC progress, jumping a whole month back to a country with barely any European Patents (a fraction compared to a country like France or Germany). Bulgaria was mentioned on August 21st (but that only showed up yesterday) regarding something that happened back in July. To quote: “On 24 July Bulgaria ratified the Protocol on Provisional Application of the UPC Agreement (Protocol). Four more ratifications/declarations are needed, including Germany, for the Protocol to come into effect and allow the practical workings of the Unified Patent Court (UPC) to be established in preparation for the court coming into operation, which will happen once the UPC Agreement (UPCA) itself has been sufficiently ratified. In both cases, ratification by Germany is a prerequisite. Recently reported comments from the Chairman of the UPC Preparatory Committee have revealed that there may be at least a 6-8 month delay once Germany is ready to ratify the UPCA, given how much needs to be done for the UPC to be ready to open its doors. It therefore looks increasingly unlikely that the UPC will take effect before Brexit unless Germany ratifies the Protocol in the next few months.”

“The EPO does not obey court rulings, it does not care about the law, the management engages in corruption, and the founding document (EPC) doesn’t mean a thing. While this remains the case (António Campinos has not tackled this in any way whatsoever), only a madman would entrust or give the EPO authority/leverage over a legal system, as per the UPC.”Notice their nonchalance; as if they’re already sure about the outcome of the complaint in Germany. As if it’s without merit. What sheer arrogance.

Meanwhile (also yesterday) Mitscherlich PartmbB’s Christian Rupp talked about an upcoming/past case for the Boards of Appeal. The EPO has already attacked its judges pretty viciously; the Boards of Appeal can therefore not rule independently and that’s a persistent problem which even the German Constitutional Court is well aware of. Rupp wrote:

In the decision T2563/11 the Boards of Appeal of the European patent had to deal with a divisional application having identical claims to a parent application (on which in the meanwhile a patent had been granted), but having differences in the specification – which, in the opinion of the applicant, lead to a different scope of protection vis-à-vis the scope of the granted parent.

The Board decided that, for the double patenting prohibition, it is the “matter for which protection is sought” defined in the claims (in line with the wording of Art. 84 EPC) which matters, but not the scope of protection, or more exactly “the extent of the protection conferred by a European patent” as defined in Art. 69 EPC. According to Art. 69EPC the “extent of the protection” shall be determined by the claims, however wherein the description and drawings shall be used to interpret the claims.

The EPC is no longer applicable in the EPO however; it was repeatedly violated by Battistelli, who faced no consequences for violating the EPC. The reality of the matter is — and the German Constitutional Court has ample evidence of it — the EPO now operates above the law. The EPO does not obey court rulings, it does not care about the law, the management engages in corruption, and the founding document (EPC) doesn’t mean a thing. While this remains the case (António Campinos has not tackled this in any way whatsoever), only a madman would entrust or give the EPO authority/leverage over a legal system, as per the UPC.

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