Bonum Certa Men Certa

Even Sites That Served UPC Propaganda for Years (for These Sites' Owners) Have Come to Admit That the UPC Might Already be Dead

The tone has changed a lot and few remain openly enthusiastic about the UPC's prospects, e.g. a patent trolls' attorney (Tilman Müller-Stoy) and Kevin Mooney

Tilman Müller-Stoy
Image source



Summary: The Unified Patent Court Agreement (“UPCA”) is dead; the German Federal Constitutional Court (Bundesverfassungsgericht) won't be ruling on the matter any time soon, leaving it to die on the altar; most of Team UPC, which spent nearly a decade on this horrible legislative coup, is just mortified, shell-shocked and silent

DO NOT expect to hear much about the UPC; we track the subject very closely (with triggers and alerts) and it is quickly grinding to a complete halt/stop. Bristows' UPC blog, for instance, published only one post in about 3 months and other UPC blogs are completely dead.



IAM's Adam Houldsworth has just talked about UPC -- yet again -- in relation to the US (IAM was paid by the EPO's PR firm to promote UPC in the US, showing utter lack of ethics and morality, having already intervened in USPTO affairs). Other than that? Almost nothing. Nothing. It's dead.

Battistelli's abusive if not seriously illegal behaviour against EPO judges is one of the factors that killed the UPC. As one EPO-centric blog put it yesterday:

The disciplinary case against Elisabeth Hardon should not let us forget that the disciplinary case which keeps the Federal constitutional court (Bundesverfassungsgericht) busy at present is about a DG3 member. Are there any news about him? Not really. He is still officially supposed to work at the Hague in a room without a phone number.

Even more puzzling: there were several DG3 members reappointed in the last Council session and new posts were created as well, yet he is still not reintegrated. Märpel thinks he is probably the only DG3 member which did not see his contract renewed.

The Federal constitutional court shall therefore have little choice but notice that DG3 members can be removed at will and therefore are not independent. This will have consequences for the implementation of the UPC, obviously.

[...]

In simple words: President Campinos seeks to increase its power even beyond what "sun-king" President Battistelli had.


A few days ago the pro-Unified Patent Court blog of Kluwer took note of the CJEU Teva-Gilead case, dubbing it "a word of warning for UPC seafarers". From the relevant part: "Certainly, the move in judgment of 25 July 2018 will disappoint those who pushed for the removal of substantive patent law from the text of Regulation 1257/2012 implementing enhanced cooperation in the area of the creation of unitary patent protection, hoping that this trick would prevent the CJEU from interpreting substantive patent law. From this perspective, the recent Teva v. Gilead decision may be interpreted as a word of warning for Unified Patent Court (“UPC”) seafarers."

As readers may recall, the Federal Constitutional Court signaled that it may take a very long time to issue a decision. UPCA ratification is extremely unlikely in Germany and the German attorney Thorsten Bausch wrote about it one day after the above, soon to be mentioned by Team UPC, which seems to agree: "Excellent summary on status of UPC vs German constitutional complaint and Brexit as well as on various hypotheticals spread by interested parties."

Citing a patent trolls' attorney (Tilman) as 'proof' or 'support' for the UPC, Bausch wrote:

The prophets forecasting an early decision by the Bundesverfassungsgericht in view of the urgency of the matter for Europe – or perhaps rather for their own pockets, have so far consistently been proven wrong. Dr. Stjerna’s constitutional complaint was filed on 31 March 2017 and has definitely not been decided “by Christmas”, as some predicted (in 2017). It was put on the (wish)list of court cases to be decided in 2018. But this does not mean much, as many cases on this list have been there for years. So much for the facts.

What do the complainant and interested third parties suspect?

Dr. Stjerna himself made abundantly clear that he has no idea when the BVerfG will decide on his case. He complained about this on his website by pointing to the fact that the court does not provide any information about the proceedings and their expected course even to the complainant, who is currently the only party to the proceedings. BTW, he can only know this, if he is the complainant himself, which he has never explicitly conceded, but also never denied.

The German Government also does not know when (and how) the case will be decided, as Dr. Pakuscher from the Federal Ministry of Justice and Consumer Protection recently confirmed during a seminar in Munich.

[...]

Be that as it may, most observers seem to think that a pre-requisite for the UK to join or stay in the UPCA is a successful closure of the withdrawal agreement between the UK and the EU. Otherwise, there would be no transition period and the UK would automatically drop out of the EU by virtue of Art. 50 TEU on 29/3/2019, i.e. before the UPCA will enter into force. As the Unified Patent Court shall be a court common to the Contracting Member States (Art. 1 UPCA), the “Contracting Member States” are “Member States” party to the UPCA (Art. 2 c UPCA) and “Member States” are defined as member states of the European Union (Art. 2 d UPCA), the UK’s participation is difficult to argue if the UK ceases to be a “Member State” before the UPCA is even enacted.

How realistic is the successful closure of a withdrawal agreement? Hmm… let us return to this question after the debate in the House of Commons in early December and assume, just for the moment, the best possible scenario from a UPCA point of view, i.e. that a Withdrawal Agreement will be closed by 29 March 2019 and that the German Constitutional complaint will be dismissed in December (aka “the Tilmann/Mooney scenario”).

This scenario will then pose the interesting question what Germany will (or should) do, i.e. proceed with the ratification at the risk that the UK may eventually not agree to the supremacy of Union Law and the CJEU as final arbiter, when push comes to shove, and/or that the EU and the UK will not manage to cut a “deal” on their further political and economic relationship at the end of the transition period. This could then mean an early end of the UK’s participation in the UPC Agreement and result in quite a bit of turmoil.


Mind that first comment:

Thorsten, thank you for sticking to the facts. It is much appreciated. There are, however, one or two points upon which it might be interesting to speculate.

The first point is a question of timing. That is, even if one assumes that Prof. Tilmann is well informed regarding how and when the BVerfG will decide the constitutional complaint (and putting aside the question of how he could have possibly come into the possession of the information upon which he based his statements), will Germany deposit its instrument of ratification for the UPCA before the Agreement governing the UK’s withdrawal from the EU has been ratified by all relevant Parliaments?

The second point is a question of legal mechanisms. That is, given that the UPCA does not contain any provision to (forcibly) expel Participating Member States, what could the EU (Participating) Member States do if the UK refused to withdraw from the UPCA even if (e.g. in the event of a “no-deal” Brexit, or after the transitional period provided by the Withdrawal Agreement) it was no longer bound by judgements of the CJEU?

It is also worth considering how these two points might interact with one another. For example, even if the Withdrawal Agreement is ratified, might it still be foolish for Germany to ratify the UPCA … on the grounds that there are no guarantees regarding the relationship with the UK (and the UK’s approach to judgements of the CJEU) after the end of the transitional period?

Frankly, from considering these points (and others), it appears to me that it would be reckless (to say the least!) for the UPC to be launched unless and until: (1) the precise nature of the UK’s status after the end of the transitional period (if any) can be determined; and (2) the CJEU has confirmed that, despite not having the status of an EU Member State, the UK can participate in the UPC without contravening EU law.

My experience is that many UPC enthusiasts are wilfully blind to the true nature of the legal risks for the UPC that are associated with the UK’s departure from the EU. In this regard, I can only hope that Germany will take a more realistic approach than such enthusiasts when it comes to assessing the chances (and the consequences) of the CJEU bringing down any UPC that is based upon the current legislation.


The remaining six (as of this moment) comments show Team UPC creeping in with some typical spin, citing the recent stacked debate with Kevin Mooney in it. Same old boring lies... (and yes, posted anonymously, as usual as of late)

Recent Techrights' Posts

Throwing Away "Old" Computers (Mozilla and Other Climate Deniers)
Mozilla is not leftist
Further Media Cut-downs
media reporting about the media being cut
Gemini Links 09/09/2025: Moon Eclipse and ROOPHLOCH Reports
Links for the day
Official SUSE Blog Still Uses LLM Slop (Bots) to Make Fake Articles (Marketing)
The company is all about sound bites
Companies Realise That Slop Doesn't Work as Advertised, Accordingly Dump It
"Hype dims as a country-wide survey of US corporations shows a sudden drop-off in AI use among firms with more than 250 employees."
Microsoft-Funded Lawsuits Against Critics of UEFI 'Secure Boot'
Remember that no company (or law firm) ever survives collaborations with Microsoft
 
Blaming Everything on China
TikTok works for China. GAFAM works for fascists.
People Get Tired of "Hey Hi" (AI), Unlike the Subservient Money-Obsessed Media That Gets Paid to Pretend This Bubble Still Matters
"crash will be way bigger than dot.com burst in 90s. and that was Internet, actually transformative technology, not this expensive AI toy with direct dependency on the energy input which is not scalable"
Brett Wilson LLP Accepts That the Serial Strangler From Microsoft Filed a Case That Also Implicates My Wife (Everything is Connected)
They used to pretend that there were two separate cases
10 Reasons to Disable (or Enable) UEFI Secure Boot
Tomorrow the "trusted corporation" Microsoft will see a certificate expire
Gemini Links 10/09/2025: Hospital and Large Feeds
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, September 09, 2025
IRC logs for Tuesday, September 09, 2025
The Bluewashing of Red Hat is Being Completed, Many Staff Understand They'll be Made Redundant
Jim AllowHurst (Whitehurst) is meanwhile promoting Microsoft's agenda from within other companies
statCounter Sees GNU/Linux Exceeding 10% in Bulgaria This Month
What can Microsoft still do to stop GNU/Linux?
Dark Patterns
Microsoft saying "security" is like a Convicted Felon in the White House saying "law and order".
It's Almost Fall (Autumn)
To "Facebook prison" you are bound
Bruce Schneier About "Secure Boot"
Bruce Schneier isn't a fan of "Secure Boot"
Links 09/09/2025: Microsoft Mass Layoffs Again and "RTO" (Timed Like It Serves as a Distraction From the Mass Layoffs)
Links for the day
RMS Told Microsoft to Stop 'Secure Boot' (He Even Went There to Say That), But They Didn't Listen
Dr. Stallman (RMS) assumed that speaking to sociopaths would work
What Richard Stallman Told Me About 'Secure' Boot in 2012
"if the user doesn't control the keys, then it's a kind of shackle"
Those Who Helped Microsoft Weaponise "Secure Boot" Against GNU/Linux and BSDs Are Fleeing
Microsofters doing what they do best: they evade accountability
Simple is Better, Simplicity is Power
That is "the advantage of having commodity GNU/Linux systems," an associate notes
Much Ado About Nonsense
Microsoft Lunduke is still all dramatisation and sensationalism
Current Events in France
It needs to dump Microsoft and other GAFAM (US) giants, move to Free software
Links 09/09/2025: US-Korea Tensions and Meta Whistleblowers
Links for the day
Links 09/09/2025: “Torrents of Hate” and Political Crisis in France
Links for the day
Gemini Links 09/09/2025: "Dedigitizing" and Forgejo on FreeBSD
Links for the day
Google News (Not Just Google Search) Lets Itself by Gamed by One Slopfarm - to the Point Almost Half of "Linux" News is Bot-Produced Plagiarism (LLM Slop With Slop Images)
That says a lot about what Google thinks of quality, even in Google News
Bill Gates-Funded Media Inadvertently Refutes the Microsoft Lie That in 2025 Microsoft Had Just Two Waves of Layoffs
There were about 12 rounds of layoffs so far in 2025
From theregister.co.uk to theregister.com (US) to The Register MS (Run by Microsoft Operatives) and theregister.ai
The best way to break this racket (or cycle of hype and harm) is to break the chains of funding
Open Source Initiative (OSI) Culture of Censorship Necessitates More Speech
The OSI bans dissent or people who merely point out that the OSI is abusive
How to Reach Us Discreetly (Other Than Encrypted E-mail)
We're still managing to maintain a 100% source protection record. We soon turn 19.
LLMs Are Vastly Worse Than a Waste of Energy and the Externalities Are Huge
Worse than just higher power bills for everybody
LLMs Versus Search (Not Replacing Search But Engaging in DDoS Attacks Against Web Sites That Permit Searching)
The state of the Web isn't just bad; it's utterly terrible
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, September 08, 2025
IRC logs for Monday, September 08, 2025
It's Only the Second Week of September and Already Two Waves of Layoffs at Microsoft, Slopfarms and Microsoft-Funded Sites Spin It as "AI Investments" Rather Than Commercial Failure
A very large third one expected next week
The UEFI 9/11 - Part IX - Shunning Old Computers (in 2023 the Certificate Was Updated/Overridden, Underlying Aim May Be Herding/Forcing People to Get TPM and Other 'Novel' Restrictions)
the "upgrade treadmill"
Rumour: Second Wave of Microsoft Mass Layoffs in September to Commence Third Week of September
That basically answers questions like, "Any specific date or time of the month?"
If Your Machine Still Has "Secure Boot" Enabled, Then Microsoft Has a de Facto Kill Switch (Even If Your Machine Doesn't Have Windows and Never Had Windows)
It is not incorrect to call UEFI 'secure boot' a "kill switch"
Gemini Links 08/09/2025: Reality, ROOPHLOCH 2025, and Writing Another Gemini Client
Links for the day
Updating Firmware is Not the Solution But Only Additional Risk, Disable "Secure Boot" Today
firmware blobs are buggy, secret, impossible to audit, and barely tested
Microsoft Tim's DevClass (Part of The Register MS/Situation Publishing) is Full of Slop
Looking at many sites that are full of slop images is becoming an eye sore and hallmark of text too likely generated by LLMs or 'assisted' (tainted) by them
Microsoft Trying to Fake Demand for Slop. At What Cost?
That's a giant demotion and broken promises
Reddit is Corporate Propaganda
To make matters worse, Reddit ousted many original moderators
Jeff Geerling Shocked to Discover Many Metrics in YouTube Are Fake (His Audience Turns Out to be Much Smaller)
Maybe self-host all videos, don't rely on Google's "FOMO" cheating (addiction based on false assumptions)
Sunlight is the Best Disinfectant and Kryptonite/Garlic to Vampires
Transparency (sometimes described by words like "Sunlight" or "Truth") is paramount
The Register MS Uses Slop in Articles About Slop
we are fairly certain it's slop or CG based on other people's work
Visiting a Web Page or a Public URL Should be Safe, Predictable, and Benign
It's probably too late to "fix" the Web
The Register MS (Situation Publishing) is Paid to Spread Mindless Hype for the "Hey Hi" Ponzi Scheme and That's a Serious Problem
"Sponsored by Zoom."
Links 08/09/2025: Burger King Cracked, Cox v. Sony Analysed
Links for the day
Gemini Links 08/09/2025: Socialist Computer Museum and GAFAM/ByteDance/TikTok-Dominated Net
Links for the day
Links 08/09/2025: Tim Crook Disappoints Apple Faithfuls and Zuckerberg Lies (Financial Fraud) for Cheeto King
Links for the day
EPO Workers Point Out that the EPO is Destroying the Planet Under the Guise of "Hey Hi" (It Also Grants Many Invalid Patents Illegally
On 12 March and 16 June 2025, staff representation met with the administration in the Local Occupational Health, Safety and Ergonomics Committee (LOHSEC) in Munich
Turn Off Microsoft's Restricted Boot ("Secure Boot")
We're still running a series on this issue
Social Control Media Sites Have Become Bot Farms (Not Limited to LLMs and Automation)
linkedin.com was nothing but trouble and losses for Microsoft
Deep in Debt With the Magnitude of Losses Quickly Growing, Microsoft "Open" "Hey Hi" Now Uses Broadcom for Vapourware, Pretending It'll Do OK Next Year
At some stage it'll collapse
You Can Tell Microsoft is in Trouble When Its Own Fans and Staff Blast it
"Microsoft sinks billions into chasing artificial intelligence fads to hype up its share price."
Multiple Undersea Cable Cuts and We're Still OK
Microsoft customers experience problems
Lawyers Who Think They Are Online Assassins Don't Deserve a Licence to Operate
they've become a laughing stock in their "sector"
Microsoft Windows Fell to 3.9% "Market Share" in Bahamas
Based on statCounter
How the European Union (EU) Fell Out of Love With Free/Libre Software
Lots of bribery
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, September 07, 2025
IRC logs for Sunday, September 07, 2025