05.05.19
It’s 2019 and Team UPC is Still Composing ‘Fake News’ (Lobbying Disguised as Reporting)
We’re dealing with the ‘Trumps’ of the patent world here
Summary: The Unified Patent Court (UPC) is a failed project, but in an effort to get it ‘off the ground’ again the media associated with (and funded by) litigation firms perpetuates old falsehoods, misconceptions, and deliberate lies
WE recently began researching topics other than patents. Back in the old days we wrote a great deal about Microsoft and Novell. In the past decade, however, we looked more closely at the U.S. Patent and Trademark Office (USPTO) and the European Patent Office (EPO) was a focus this past half a decade. Our persistence in covering injustice and corruption was somewhat of a guiding star. Last month and the month before that we wrote some articles about the Linux Foundation and they’ve struck a nerve.
We cannot ever take credit for taking down the UPC, but no doubt we played a role in it. Many parties played a role; we were one of many. There’s not much coordination and the degree of overlap is limited or barely existent. The same cannot be said about Team UPC, which is a collective term for a collection of patent law firms. They have a well-organised lobby and they constantly lie to officials, not only behind the scenes but sometimes in public too. Earlier today we saw IP Kat (whose ‘staff’ is in Team UPC) promoting 4iP Council's agenda (the UPC agenda). To quote: “4iP Council has a new webinar coming up soon. Held on the 14th of May, the topic will be “Understanding Injunctions in European Patent Law” and the presenter will be Prof. Dr. Lea Tochtermann of Mannheim University.”
“They habitually lie to everyone about UPC being “for SMEs” or similarly-outrageous nonsense (complete inversion of the truth).”Injunctions under UPC would be horrific and even raids are included. We wrote about these aspects of UPC before. To think that politicians were willing to ratify these things without even reading the text (it’s massive and incomprehensible to many) is a testament or a hallmark of the “beast” we’re dealing with. A lot of the public knows nothing about the UPC (the acronym or the substance) and this gap or void serves the UPC lobby very well. They habitually lie to everyone about UPC being “for SMEs” or similarly-outrageous nonsense (complete inversion of the truth).
Yesterday we spotted this law firm writing in Microsoft’s LinkedIn something titled “Unified Patent Court #UPC Milan is the natural seat” and it’s obviously nonsense even based on the headline alone. This is a lie. This is just crazy. You cannot just swap London with “Milan” and then carry on as if nothing happened. It doesn’t work this way. They very well know that it doesn’t work this way (it’s extremely complicated), but the litigation firms prop up fake news and fantasies about Milan replacing London, never mind illegality of the UPC itself and various other barriers. Propaganda mouthpieces of the litigation ‘industry’ do this all the time. We gave another example only weeks ago. No doubt there will be more to come, never mind if the longer it goes on (time passing), the less likely UPC is to ever materialise (in any shape or form). Publications with vested interests still try whatever they can, floating the idea that UPC isn’t over (it’s dead) and yesterday we saw this tweet from Managing IP, showing that Patrick Wingrove is back with these lies. The tweet said: “UPC without UK still attractive and could diminish country’s importance as litigation forum https://patentstrategy.managingip.com/Articles/36 Most international companies say they would use the Unified Patent Court without the UK as a member and might even use the UK courts less…”
“Propaganda mouthpieces of the litigation ‘industry’ do this all the time.”These are the two famous lies repeated. There are several subtle lies embedded in that one sentence. Intentionally loaded statements (loaded with lies). We rebutted these lies so many times before, but here we go again.
Wingrove wrote: “Despite some manufacturing businesses losing interest in the Unified Patent Court (UPC) and unitary patent, the harmonised European project would still be used by most patent-focused industry sectors if the UK did not participate and might diminish the UK’s role a litigation forum, according to in-house lawyers.”
They’re only asking lawyers, as usual. Putting aside the selfish (self-serving) agenda of the messenger, there’s no “harmonised European [patent] project” (it does not exist) and it’s not down to whether the UK participates or not. In fact, it cannot. Because it does not exist. Even if it existed (which isn’t the case!), the UK would be legally unable to join.
“Putting aside the selfish (self-serving) agenda of the messenger, there’s no “harmonised European [patent] project” (it does not exist) and it’s not down to whether the UK participates or not. In fact, it cannot. Because it does not exist. Even if it existed (which isn’t the case!), the UK would be legally unable to join.”This is what counts as ‘journalism’ these days. Lawyers writing articles or so-called ‘reporters’ asking liars in the pockets of patent trolls. It’s worrying, but that’s what we have. Managing IP keeps doing it all the time (here is a months-old example), as do IAM, Watchtroll, Law Gazette etc. Facts don’t matter to them, only agenda.
Speaking of distortion of facts, here’s a new article titled “patent entitlement” even though patents are not entitlements, they are monopolies and they are temporary. They’re not "property" either. Over the past few months the EPO routinely referred to patents as “IP” (they meant not Invalid Patents). There’s also this new press release for a seminar in London (titled “Effective Defence of EPO Patent Applications”), pushing in the direction of patent maximalism rather than restricting the scope/reach of patents. Potter Clarkson LLP’s Jack Livsey has just published this piece titled “Patent Applications on the Rise,” neglecting to note the role of software patents in Europe (software patents aren’t actually valid in much of the world) and junk patents or patent applications from China that are filed by the millions. To quote:
The European Patent Office (EPO) and the World Intellectual Property Organization (WIPO) have both recently published patent filing figures for 2018…
That says nothing about the quality of patents. I could, in theory (if WIPO offered accreditation), run a patent office at home and just have a computer program accept every patent application that comes in. I could process and grant a billion patents a day, but to what end/use? Nothing. I could also run some computer programs to automatically generate gibberish “patent applications”. Remember that a patent office which just grants (or “generates”) lots of patents isn’t necessarily much of a patent office. Similarly, courts that don’t properly assess patents or care for national laws (that’s what UPC would do) aren’t really courts of justice but mere “theatre”. Sometimes the audience, e.g. the defendant, doesn’t even follow the plot in this “play” because the judge speaks a foreign language and all the documents are composed in some arcane (to the defendant/accused party) language.
“National laws do not matter to the EPO. Not even international laws (which the EPO routinely violates with impunity). This is the kind of system that they hope UPC to inherit, too. Total lawlessness — a kangaroo court controlled by the patent microcosm.”No doubt the UPC boosters won’t end here; they won’t quit just yet. Days ago Bristows (Team UPC) wrote in IP Kat a bunch of nonsense about UPC, based on a think tank of the litigation ‘industry’. More of the same sourceless “predictions”; that’s all it boiled down to.
And speaking of IP Kat, it has just published this article about the EPO Boards of Appeal. Still lacking independence (the judges), it’s supposed to decide on “priority right transfer (T 0725/14)”. To quote:
A recent case from the EPO Boards of Appeal (BA) tackled again the thorny issue of transfer of the right to claim priority. The case (T 0725/14) is an interesting reversal of the norm in cases of invalid priority. We are used to situations in which the proprietor needs to show that an assignment had occurred before the filing date of an application claiming priority. In the present case, the Opponent faced a different but related challenge. In order to invalidate the priority claim, the Opponent had to demonstrate that an assignment had occurred prior to the filing date of the PCT. T 0725/14 is thus yet another reminder to applicants of the critical importance of understanding the EPO’s strict approach to the right to claim priority.
[...]
According to EPO case law, the transfer of a priority right has to be assessed by applying the relevant national law (T 0205/14). The Board (3.3.02) determined the relevant law in the present case to be the Dutch Civil Code. The Board also took note of the “Haviltex principle” of Dutch contract law. The Haviltex principle dates back to a 1981 Dutch Supreme Court case. The Dutch Supreme Court ruled that the meaning of a written contract cannot be interpreted by mere pure linguistic analysis. Under the Haviltex principle, it is necessary to consider the meaning that both parties could have reasonably attributed to the contract.
Furanix argued that, applying the Haviltex principle, the right to claim priority could not have said to have been assigned by the agreement. Furnanix submitted a declaration by Mr van Aken that in signing the agreement, it had not been the intention of either Furanix or Avantium to assign the right to claim priority.
[...]
Furanix therefore found themselves in an unenviable position. On the one hand the intentions of Avantium to not assign the priority right to Furanix were not believed by the BA. On the other hand, the these intentions of Avantium were argued for sufficiently enough by Furanix to disqualify correction of the applicant from Avantium to Furanix.A timely reminder, then, that the BAs show no signs of leniency in the matter of the strict identify requirements for a valid priority claim at the EPO.
As usual (for today’s IP Kat), comments tend to be better than the posts (at least the comments that manage to get past moderators, who include Team UPC and friends of Battistelli). To quote the sole comment there:
There was an interesting argument during the hearing about the relevent law which should apply for substantive matters (eg interpretation of the document under the “Haviltex” principle, and the rules of evidence. Thus, both parties accepted that Dutch law should govern the interpretation of the assignment agreement. There was a dispute about how “Haviltex” should apply, but both parties took the view that Dutch law was determinative on whether/how Haviltex should apply, and filed evidence from Dutch attorneys. HOWEVER, the Opponent also argued that EVEN IF under Dutch law the intention of the parties was determinative, such intention needs to be properly evidenced, and the EPO rules for adducing and evaluation evidence should apply. Thus, when a tribunal applies foreign law, it nevertheless always uses its own rules of evidence to determine the facts so that it can apply the law. The EPO rules of evidence say that when all relevant information is under the control of one party (as was the case here) that party must prove its case “up to the hilt”. That was the approach the Board seemed to follow, deciding in the end that the did not need to worry about the correct interpretation of Haviltex under Dutch law, on the basis that even if the Patentee was right on that legal point, it should still lose due to the lack of evidence to show the intentino of the parties.
A really interesting case.
See? National laws do not matter to the EPO. Not even international laws (which the EPO routinely violates with impunity). This is the kind of system that they hope UPC to inherit, too. Total lawlessness — a kangaroo court controlled by the patent microcosm. █
Content is available under CC-BY-SA