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09.28.18

How Team UPC is Reacting to the Demise of EPO- and EU-Connected Court That Would Have Put Patent Maximalists in Charge

Posted in Europe, Patents at 4:59 am by Dr. Roy Schestowitz

France at the centre, as usual

The three Frenchmen

Summary: The three Frenchmen above are unlikely to ever see a Unitary Patent or Unified Patent Court; this is only bad news for patent trolls and law firms that represent them, hoping to make a killing across Europe with frivolous litigation and threats of litigation

THE previous post focused on the decline of patent quality at the USPTO — a problem which has spread to Europe. For the time being, however, courts can compensate for that. Patent maximalists are hoping for bogus courts with lack of oversight and a bias in favour of EPO management, software patents etc. (bypassing national courts)

Such courts would fall under a “Unified Patent Court” or UPC as they call it. If only if ever became a reality. After a series of rebrands and a lot of mischief it has ground to a halt and there’s no escaping the reality that UPC is running out of time. Even patent maximalists and firms that pushed hard for UPC (we call them “Team UPC”) are losing hope. Towards the end of this week we saw one law firm saying: “The implications for the Unitary Patent and the Unified Patent Court depend on whether the Unified Patent Court Agreement comes into force – it will do so if it is ratified by Germany. If it does and there is no deal relating to the UK’s involvement in it, then UK businesses will be able to apply for Unitary Patents and enforce them in the Unified Patent Court. However, UK businesses will only have the option of obtaining a UK patent (whether by applying to the UK Patent Office or through the EPC system) and enforcing their UK patent rights in the UK courts.”

These are pretty loaded statements that rely on the false assumption of a 'continental' UPC ever coming into fruition. It cannot, not outside the UK. Published this morning from Mark Bell of Dehns (part of Team UPC) was an article which says this:

Although the unitary patent and the Unified Patent Court have yet to come into force, its subsequent fate may well be affected by the UK leaving the EU.

Were the Unified Patent Court to never come into force, there will be no change for businesses in the UK or the EU at the point that the UK leaves the EU, even though the UK has ratified the Unified Patent Court Agreement.

Were the Unified Patent Court to come into force (once Germany has ratified the Unified Patent Court Agreement), the UK will seek to remain within the Unified Patent Court and the unitary patent system. However, depending on whether this takes place before the UK leaves the EU (the latest thinking on this is that this seems unlikely) or after leaving the EU, may affect the UK’s ability to participate in these systems.

Were the UK to be part of the unitary patent and the Unified Patent Court systems (e.g. before the UK leaves the EU), one scenario is that the UK would need to withdraw from them (e.g. when the UK leaves the EU). Businesses (both in the UK and overseas) would therefore no longer be able to use the unitary patent and the Unified Patent Court to protect their inventions within the UK. Instead, as they are able to now, they are able to seek patent protection in the UK via the UK Intellectual Property Office or the European Patent Office (a non-EU institution).

How can Dehns honestly say this after the release of this paper from the Max Planck Institute? People asked this in the comments (so-called ‘interview’ with other Dehns staff) only to hear some excuse about the ‘interview predating this paper. The reality is, they intentionally ignore anything which doesn’t suit their financial agenda, i.e. more of the usual. Bristows went further and smeared the paper, calling it “controversial” even though no controversy exists.

As we said some days ago, "lost in the noise created by Team UPC this week is the simple fact that the British government now admits it’s willing to abandon all Unified Patent Court (UPC) Agreement (UPCA) plans" and this latest interpretation is more correct than most things lawyers have said about UPC (compare to the infamous two lies). To quote:

The UK has ratified the Unified Patent Court Agreement, but it still needs to be ratified by Germany and it is unclear if this will occur before 29 March 2019. If the UPC does not come into force, there will be no changes for UK and EU businesses at the point that the UK exits the EU.

If the UPC does come into force, the notice confirms that the Government will “explore whether it would be possible to remain within” the UPC and UP systems even in a hard Brexit scenario.

By contrast, see what a totally and completely stuffed/stacked panel at the AIPPI event (as one might expect) said (or is reported to have said):

Carr was one of six panellists (all speaking in a personal capacity) who took part in the “Briefing: hot topics in IP” session during the 2018 AIPPI World Congress in Cancún, Mexico, which finished yesterday, September 26.

While refusing to express any views about the wisdom of Brexit itself, Carr noted that one of the most difficult topics to deal with post-Brexit will be IP exhaustion.

[...]

Finally, on the Unified Patent Court (UPC) Agreement and the unitary patent, Carr said: “In my opinion, if we reach a deal then I think the UK will participate … and we have a valuable contribution to make. If there’s no deal, I think it’s unlikely that we will participate … I don’t think it would be in the interests of other European countries to allow us to do so.”

Also in the session, Judge Klaus Grabinski of the German Federal Court of Justice discussed the UPC Agreement in more depth.

“When you look into the UPC’s life, you may get a feeling that we are now in a situation which is rather unclear. Europe has been struggling to get a common court in the patent field for more than 60 years,” he said, before adding that Brexit and a constitutional complaint in Germany are the two main roadblocks to the UPC.

The above isn’t to be mistaken for the constitutional court, or FCC. A different court, the German Federal Court of Justice, is named above. IP Kat wrote about it a couple of days ago in relation to this case now referred to CJEU. What the above suggests is that even judges can recognise the seriousness of the barriers, and the constitutional complaint isn’t the sole barrier.

It should be noted that the above event promoted patent trolls’ agenda, as one might expect from AIPPI World Congress. Bristows did coverage of it in two parts [1, 2] for IP Kat and irony wasn’t overlooked by Benjamin Henrion, who wrote: “Consumers not invited to the FRAND conference: “Tadanobu Andou concluded by reminding the meeting that patent licence fees are in the end paid by end users. In setting licensing fees have to consider how much end users are ready to pay.””

Well, Bristows are “liars and patent zealots,” I told him, as they “push SEP/FRAND agenda” for their clients that are patent trolls. This is why they’re also pursuing UPC like they’d go bankrupt if it fell through.

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