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09.06.18

Even Overzealous Patent Maximalists Nowadays Admit That Time is Running Out for the Unitary Patent (UPC)

Posted in Europe, Patents at 3:30 am by Dr. Roy Schestowitz

“Who’s next?” ~Insider tweet

EPO death angel

Summary: The UPC is next to ‘die’ (after ILO-AT, EPC, AMBA, SUEPO and examiners’ careers), being a casualty of very serious EPO abuses that impact a lot of people, including journalists whom the EPO kept threatening, never mind the growing danger of being sued using wrongly-granted European Patents

THE silence surrounding UPC is almost deafening. Bristows remained quiet for a very, very long time (like never before) and Team UPC in general isn’t even bringing up the subject anymore. To the EPO the subject virtually does not exist; António Campinos mentioned it once (a couple of days after joining the Office), but nothing has been uttered since. SUEPO hasn’t mentioned the words/terms for a number of months. We watch the relevant terms closely (monitoring the news) and it’s like a ghost town. UPC is almost never mentioned, not even inside the bodies of articles. Yesterday was a rare exception because very vocal boosters of software patents (we wrote about them about a dozen times before and recently they were rather strident about their biases) wrote about “The Unified Patent Court and the Unitary Patent”. Shelston IP’s Serena White and Charles Tansey now say that “time is running out” for the UPC (that’s their headline) and, in their words, “[a]lthough many [Team UPC and the litigation 'industry'] expect the challenge to fail, if it is successful, the UPC will certainly be in troubled waters because Article 89 of the Agreement requires ratification by the three EU member states with the largest number of patents in force. Although this criterion does not mention any states by name, in practical terms it requires Germany’s ratification because Germany is the EU member state with the largest number of patents. Amendment of the legislation would be required in order circumvent this problem, but the question is whether the appetite to continue with the UPC without Germany would still exist.”

Here are their concluding words (before the final paragraph that is just shameless self-promotion):

With still no decision on whether or not a legal challenge at the German Constitutional Court is admissible, it is becoming increasingly uncertain if the new legislation for the Unified Patent Court (UPC) and the unitary patent will come into force before the UK’s departure from the EU. This article briefly outlines what the unitary patent and Unified Patent Court are, summarises the current issues and explains the significance of the timing of German ratification in the context of “Brexit day”.

That does not perpetuate the two famous lies often repeated by Team UPC in the UK. What’s noteworthy about it is that it’s a rare admission from patent zealots that UPC does not have a future. The three Frenchmen below may never fulfill their dream of making European Patents (of rapidly-declining quality) an “EU” thing, no matter how hard they try to perturb constitutions and irrespective of Brexit referendum outcomes. I personally do not believe that Brexit will ever happen, but even if it falls through, the UPC will still be doomed as that may take years of further bickering.

The three Frenchmen

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