08.16.19

IP Kat Pays the Price for Being a Megaphone of Team UPC

Posted in Deception, Europe, Patents at 11:58 pm by Dr. Roy Schestowitz

Some proponents of the Unified Patent Court (UPC) have taken a cloak of anonymity because they know they’re lying; they don’t want to take responsibility/face accountability for it.

Summary: The typical or the usual suspects speak out about the so-called ‘prospects’ (with delusions of inevitability) of the Unified Patent Court Agreement, neglecting to account for their own longterm credibility

THE Campinos/Battistelli-led European Patent Office (EPO) no longer mentions the UPC. It’s hard to even recall the last time ‘unitary’ anything was mentioned by the EPO. Team UPC is another matter. These charlatans and frauds spent at least half a decade of their lives on this destructive legislation, wrongly assuming that in the name of “community” or “unity” or “EU” it’ll pass smoothly with whatever horrific clauses are contained in it (written by litigation firms and their lobbyists).

“These charlatans and frauds spent at least half a decade of their lives on this destructive legislation, wrongly assuming that in the name of “community” or “unity” or “EU” it’ll pass smoothly with whatever horrific clauses are contained in it (written by litigation firms and their lobbyists).”Years ago IP Kat was still quite credible and scholarly (with Jeremy as its editor, not just its founder); we’re sad to see what it has become, rotting like most media, turning to PR/marketing and lobbying. We know whose. Just check the writers’ professional affiliations. It’s rather gross. Might as well rebrand/rename to “Litigation Kat”.

“No rush for the UPC” responded to this recent post from IP Kat. He or she calls out this book and promotional puff piece for advancing Team UPC’s lies and the motivation for these lies:

The book might only become interesting should the UPC come into force, and nothing is less sure than this. With the present UK PM, one can have reasonable doubts that a reference to the CJEU will be tolerated after Brexit.

On the other hand, the RoP have not yet been adopted by the Commission. So the book appears a bit too early. On the other hand, the RoP contain procedures unknown in most Contracting States, like forced intervention. A decision of the UPC might be applicable to a third party not having taken part in the whole procedure! I doubt that this can be constitutional in a number of Contracting States.

The heavy reference to German decisions is not a surprise for those having witnessed the various mock trial conducted in different places.

One observation was that reliance on national traditions was very heavy, especially if the panel is composed with two judges of the same nationality. They can easily outvote the third judge, or ignore the technical judge, as the chairman has a casting vote.

The Court of Appeal of the UPC will have a lot of work and it is only after enough decisions of the Court of Appeal, that it will be possible to say that the UPC will be successful or not. Then a book might be justified, but not presently.

One could also consider that the book is a call to the German Constitutional Court to dismiss the objections of Mr Stjerna. One of the publishers of the present book has clearly taken position in this respect. Its interpretation of Opinion C 1/09 has also changed with time….

The German Constitutional Court does not even need to rule on it; UPC will die on its own. By the time there’s a decision it’ll no longer be relevant.

“Even if the German constitutional complaint against the Unified Patent Court Agreement is dismissed, the German government will not proceed with ratification of the UPCA until the consequences of the Brexit are entirely clear,” says Kluwer Patent Blog, whose latest UPC coverage is by “Kluwer Patent blogger” (anonymous), i.e. it is most likely by Bristows LLP again. They themselves said they're trying to give an illusion (i.e. lie) of UPC progress and here’s the latest:

Even if the German constitutional complaint against the Unified Patent Court Agreement is dismissed, the German government will not proceed with ratification of the UPCA until the consequences of the Brexit are entirely clear.

[...]

The Federal Constitutional Court in Germany is expected to decide about the Stjerna complaint later this year or possibly at the start of 2020, as is more likely according to a recent article of Fish & Richardson: ‘The Constitutional Court case is (…) now scheduled for decision in 2019, but that schedule is not binding. Announcement of the date for oral argument, perhaps within a few months from now, will be the best indication of the decision date, because it must be handed down within three months after the oral hearing. Given the August holidays, it seems most likely the decision will be in early 2020.’

The German parliamentary questions were aimed primarily at the costs of the UPC and Germany’s contribution to its funding. According to the letter of the Ministry of Justice, the most important contribution of Germany so far – 543 981 euro – went to the creation of the new IT system for the UPC, which has ‘almost been completed’.

Stjerna’s complaint is no longer the sole barrier then; outside the FCC (Federal Constitutional Court), even the government itself — i.e. a separate branch — speaks of Brexit. Whatever the outcome may be, software patents remain a big (and growing) problem in Europe because the EPO keeps granting them, even if European courts repeatedly reject these. The EPC too is being violated. That’s a subject we’ll deal with in our next couple of posts. █

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