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01.16.19

Brexit Has Failed, But So Has the Unitary Patent (UPC)

Posted in Europe, Patents at 5:18 am by Dr. Roy Schestowitz

UPC Dead

Summary: Even though all signs indicate that the Unified Patent Court (UPC) will never become a reality spin is to be expected from Team UPC, still looking to profit from more litigation and expanded scope

Last night there was that historic vote on the Brexit deal; the overall outcome was predictable and the “unknown” was the extent to which the deal would be voted down as well as the steps to follow (there’s still lack of clarity about that). But regardless, the UPC died and with it the possibility that some bizarre courts will allow software patents in defiance of national patent laws.

As recently as yesterday the European Patent Office (EPO) was promoting software patents in Europe ‘dressed up’ as “blockchain” — citing the usual nonsense from António Campinos. Of course this is a violation of the EPC, but the EPO is an outlaw institution that disregards courts’ decisions and constitutions. The EPO’s patent extremism has deepened under the new administration.

“Of course this is a violation of the EPC, but the EPO is an outlaw institution that disregards courts’ decisions and constitutions. The EPO’s patent extremism has deepened under the new administration.”Bird & Bird LLP’s Oliver Jan Jüngst, Anna Wolters-Höhne and Annika L. Schneider (Team UPC) have just commented on the Düsseldorf decision that we mentioned in passing last week and so far we haven’t seen any response from Team UPC to what happened last night.

Published yesterday in two publications, JD Supra and Lexology, was an article titled “Effect of a “No-Deal” Brexit on IP in the UK” (by “IP” they mean copyrights and patents — two entirely different things). Latham & Watkins LLP’s Deborah Kirk and Terese Saplys perpetuate lies about unitary ‘patents’ — in effect treating the UPC as inevitable even though it’s dead. This is the background:

On 19 February 2013, 25 of the 28 EU member states (excluding Croatia, Poland, and Spain) accepted the European Commission’s proposal for “enhancing the patent system in Europe” and signed the Agreement on a Unified Patent Court (UPC). To date, 16 EU member states, including the UK, have ratified the UPC, which now only requires Germany’s ratification to take effect. When the UPC becomes effective, it will hear cases relating to European patents and a new type of patent: the unitary patent. The European Patent Office, which is not an EU institution, will administer both types of patents.

Notice the tense. They don’t say “would” or “if”; they perpetuate those same old lies. Further down it speaks of “two possible outcomes regarding the UPC in the context of Brexit…”

The first: “The UPC does not come into force before exit day: If Germany fails to ratify the UPC, by operation of the European Union (Withdrawal) Act 2018 the UK will not enshrine in national law the underlying EU legislation and it will never take effect in the UK.”

Aside from the odd use of the word “fails” — as if rejecting something unconstitutional is a “failure” — they make it seem like a question of timing, not outcome. Moreover, they make it seem as though the only uncertainty is associated with UK participation rather than the UPC as a whole.

“Conspicuously missing is the option that’s already becoming a reality: UPC falls flat on its face, so Britain has nothing ‘unitary’ to ever consider, let alone participate in.”To them, the second possibility is as follows: “The UPC comes into force before exit day: The UK government’s technical notice on patents implies a degree of uncertainty in this scenario, stating simply that the UK will explore whether it is possible to remain in the UPC and unitary patent system following Brexit. In the event that the UK needs to withdraw from the framework, the technical notice advises that businesses would not be able to use the UPC and the unitary patent system to protect their inventions within the UK. The UK will grant an equivalent patent to any existing unitary patents to ensure their continued protection in the UK. Businesses could still use the UPC and unitary patent to protect their inventions within the contracting EU countries, but would need to maintain equivalent UK patents (and enforce these in UK courts) to protect their inventions in the UK.”

Conspicuously missing is the option that’s already becoming a reality: UPC falls flat on its face, so Britain has nothing ‘unitary’ to ever consider, let alone participate in. This is the sort of lie we see almost every week in some so-called ‘articles’ from British law firms. They’re playing psychological games for lobbying’s sake.

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