Bonum Certa Men Certa

Think Tanks, Bristows, 'Simmons' and 'Birds' Can Only Ever Lie to Us About the Dead Unified Patent Court (UPC)

Don't listen to the likes of Bird & Bird and Simmons & Simmons; they're the very reason this abomination exists in the first place

A clump of feathersSummary: The UPC is a dead bird, but lobbyists of the litigation giants would have us believe otherwise, in “In-depth Analysis” which is anything but (it's just propaganda with the veneer of officialism)

THE Unified Patent Court Agreement (UPCA) is doomed. It has been doomed for a while. Nothing has changed. Some words from groups that call themselves "think tanks" have no concrete bearing. It's just about perception-shaping. PR stunts, to put it bluntly...



"Team UPC's pleadings border or verge on the comical."But OK, we get it... Team UPC got a little excited some days ago. Can it use such "think tanks" to bamboozle the general public? Maybe even some high-profile judges in Germany? Maybe politicians across Europe? The opposition to the UPC only grew over time (at least five European governments now oppose it at one level or several levels).

Team UPC's pleadings border or verge on the comical. They lie so often and so recklessly and when called out on it they run away! Don't expect them to actually debate their position as they very well know their arguments are weak/invalid.

We're rather disappointed that someone invited them (Bristows LLP at least) to a pro-FRAND event -- an invitation they used for perceived legitimacy by tweeting: "Should component makers receive exhaustive licenses? Pat Treacy joins a panel discussion at @FOSSpatents conference in #Brussels - 12 Nov..."

That's in a few days. @FOSSpatents retweeted this only because he had been mentioned. I already spoke to him about why inviting these people is bad karma. He pro-actively tried to defend this decision. They're always lying at IP Kat and they've turned that blog into a pro-FRAND, pro-patent trolls farce. Here's her colleague, Edward Nodder, with the UPC propaganda -- the first blog post in a very long time; he is again pushing the malicious UPC, with help from IAM's parent/patent company.

Bristows amplifies some blog post entitled "European Parliament publishes research paper on how Brexit may affect UPC" and of course Bristows just twists whatever came out of there. It's a think tank, not the European Parliament, which merely published it. In their words: "The European Parliament (EP) published on 5 November 2019 a research [sic] paper EU Patent and Brexit, an “In-depth Analysis” which considers how Brexit may affect the proposed unitary patent and Unified Patent Court (UPC) system. It was requested by the EP’s Committee on Legal Affairs (JURI) and commissioned, overseen and published by the EP’s Policy Department for Citizens’ Rights and Constitutional Affairs."

It's more JURI than European Parliament per se. "Not very deep," Benjamin Henrion rightly called it. "They barely scratched the surface."

It's short and shallow. "EPO have their lobbyists in Brussels," Henrion reminded me, so we view this 'study' as lobbying disguised as "research". We have legitimate reasons to view and to treat it that way. Thankfully, some people have already responded to it. Critics find lots of issues.

"JURI outsourced a report on Unitary Patent status," Henrion wrote, "while they should have looked at the actual constitutional complaints. Parliament said in 2012 "(i) the Contracting Member States can only be Member States of the EU" which solves the UK Brexit question https://www.europarl.europa.eu/RegData/etudes/IDAN/2019/596800/IPOL_IDA(2019)596800_EN.pdf …"

Later they get worried about more 'brexits'. Why have they outsourced and to who exactly? Take a wild guess!

In reality, the Parliament needs to arrest people (some of the people in the EPO's management committed actual crimes), not push illegal treaties.

As Henrion added: "New European Parliament report written for JURI, which does not address any of the legal questions, just trying to push it through. Cost of litigation will be higher for defending SMEs, in an already expensive system #upc https://www.europarl.europa.eu/RegData/etudes/IDAN/2019/596800/IPOL_IDA(2019)596800_EN.pdf …"

Obviously.

Even some people in the litigation sector don't disagree. One of them said [1, 2]: "The problem, and I agree with you on this, is that the UPC might be used by large firms to threat or crush SMEs, regardless of the merits of the case, just playing on the costs. It is a risk. In my opinon the schedule of court fees needs a revision. [...] 1st instance ruling, Italy: average total costs according to my experience 25k-35k / peak 30k-40k. Thus, considering the high court fees of the UPC, the UPC system would be ok only in comparison with the case of multiple litigations in multiple jurisdictions. Otherwise not..."

He spoke to me as well; he's relatively reasonable and it's not the first time he admits those things; he doesn't parrot the general Team UPC 'bible'...

The UPC is clearly an attack on SMEs, just like the EPO is. At times even Team UPC admitted this (that it had lied about SMEs).

"They need to scrap the whole thing because it was written for, and by, litigation firms and their lobbyists whose largest clients aren't even European and are monopolists," I told the person above (not named in respect to him; he might receive flak from Team UPC).

Bristows perhaps decided that the above wasn't sufficient propaganda for the zombie UPCA. So within hours it also published "Dutch parliament approves amendment of national patent law to implement UPC system" and apparently paid to buy some more audience (almost nobody reads their blog, which is technically broken a lot of the time). "The Netherlands has ratified the UPC Agreement (depositing its instrument of ratification in September 2016)," they admit. So this is hardly news but, as they recently admitted to the Financial Times, an attempt to give an illusion of "progress".

Typical Bristows!

Later they wonder why they're being ridiculed. WIPR, boosted by Team UPC and quoting Team UPC (e.g. Simmons & Simmons), soon followed with propaganda in its site and in Twitter. Team UPC then quoted Team UPC from this 'report': "Kevin Mooney, partner at Simmons & Simmons in London, said that the UK government’s message on the UPC has been consistent. “I don’t think there are mixed messages at all,” Mooney said."

Liar! Liar liar!

If one examines actual comments from people who aren't in Team UPC and haven't crafted this monster, the lies very soon become evident. But they're suppressing comments, as we pointed out over the years. They're rigging the public debate by outright censorship.

WIPR is only quoting Team UPC but not actual people impacted by UPC because this site is trashy propaganda that spikes real journalism! (I've heard stories about them)

Team UPC is also linking to Bristows, so it's basically an echo chamber [1, 2] like this: "The paper „notes that the UK’s ratification of the UPCA [..|] sends a <somewhat mixed message>; eg, the UPCA provides for respect of EU law’s primacy & reference to the CJEU [...], yet the UK has stated that it wishes to leave the EU’s single market and the CJEU’s jurisdiction.“ …"

One prominent proponent of the UPC wrote: "The same reasoning applies to Germany as well. UPC system can be expected to be rather complex and expensive, in particular for SME‘s."

"SMEs were at no point involved," I responded to him and Henrion said: "German government and its Ministry of Justice also had to provide a study on the impact of UPC on SMEs. It is still time to request it, on last page: "There is no compliance burden for the economy, especially for small and medium-sized enterprises." https://stjerna.de/files/Unipat_BMJV&GG.pdf" (citing the recent paper from Stjerna).

Another UPC watcher responded: "Are you sure about that, @EP_ThinkTank? If the EPO refuses an application, no european patent is granted, no unitary patent can be born and the UPC has no review power over the EPO refusal."

There's a screenshot in there. I reminded him that the EPO breaks its own laws; it would be insane to trust it with courts. "Kluwer Patent blogger" (probably Bristows) then did another propaganda piece that said:

The jurisprudence of the Court of Justice for the European Union is not excluding the possibility to allow a non-EU Member State forming part of the UPCA. This is one of the conclusions in ‘EU Patent and Brexit’, a research paper which was requested by the European Parliament’s Committee on Legal Affairs and commissioned, overseen and published by the Policy Department for Citizens’ Rights and Constitutional Affairs. The report was published on 5 November 2019.


All the comments refute this piece, which is little but so-called 'unitary' (whose?) patent propaganda.

Also, as usual, the signal is only in the comments, not the (likely-by-Bristows) original 'article', which would be self-promotional spin that resembles what Bristows' posts elsewhere. Notice that first comment, which made it past the strict moderation (they often censor UPC critics):

Astonishing! Despite representing by far the most lightweight analysis that I have ever seen of the impact of Brexit upon the UPC, the report is presented as an “in-depth” analysis.

It adds nothing to the discussion to state that “the jurisprudence of the CJEU is not EXPRESSLY excluding the possibility to allow a non-EU Member State forming part of the UPCA”. This merely reflects the fact that the CJEU has never been asked to opine on that point. Therefore, at a very minimum, any serious legal analysis would have gone on to consider whether there are any other reasons (such as the sections of Opinion 1/09 dedicated to discussion of the Principle of Sincere Cooperation) to interpret Opinion 1/09 as IMPLICITLY excluding the participation of a non-EU Member State.

The absence of any such discussion means that a more appropriate description of the report is a representation of currently prevailing POLITICAL (as opposed to legal) views within the European Parliament. Nevertheless, I have no doubt that the conclusions in the report will be relied upon by supporters of the UPC as representing some sort of conclusive evidence of the absence of barriers to the UK’s continued participation. Forgive me if I remain unconvinced.


What other comments were posted there and possibly censored? It's hard for UPC critics to have voice themselves, except perhaps in orphaned "tweets". The litigation team of Big Pharma (Rose Hughes) posted a loaded and misleading headline (phrased as a question, to which the answer would characteristically be "no").

So what we have here is an outsourced "European Parliament Think Tank" and the EPO/litigation think tank IP Kat. Team UPC is seemingly everywhere, rigging the debate or pushing to ruin Europe for lawsuit euros and patent trolls. Hughes wrote:

The European Parliament Think Tank has issued a paper on the question of whether the UK can remain a member of the Unitary Patent Court (UPC) in a post-Brexit world. The cautious conclusion of the paper is that “it seems not per se legally impossible that the UK can stay within the UPCA [UPC agreement], even when not an EU Member State”. The problem of the UK’s continued membership of the UPCA arises from the fact that, when the UPC was conceived, nobody envisaged the UK unilaterally deciding to leave the EU.

The EU paper outlines the issues contributing to the uncertain future of the UPC and the potential involvement (or not) of the UK in the UPC project going forward. These include the reluctance of Germany to ratify the agreement before Brexit and the unclear position of the UK Government on whether the UK still wishes to be a member of the UPC (and thereby subject to the jurisdiction of the CJEU).

[...]

The UK Government’s position is that the UK wants to “take back control” of its laws by leaving the jurisdiction of the CJEU. However, the UK Government has also ratified the UPC agreement (UPCA). According to the UPCA, the UPC will apply EU law and decisions of the CJEU will be binding on the UPC. Therefore, as things stand, if the UK continues to be a member of the UPC post-Brexit the UK will continue to be under the jurisdiction of the CJEU.


No comments when we first checked. Were some deleted? We've already proven that they delete UPC-hostile comments. Got to control the narrative, right? For the "greater good" (of litigation).

Later on two comments showed up; one said: "The paper does not mention that under Art. 1 UPCA only EU member states can be part of the UPC! Moreover, the paper confuses the origin of the European patents with their validation states: in Italy there are twice more European patents in force than in the Netherlands..."

Another comment said: "The Lexico dictionary gives the following meaning for esoteric: "Intended for or likely to be understood by only a small number of people with a specialized knowledge or interest". I find it difficult to see how Ms. Hughes' use of the word can be criticized."

So comments aren't buying what Hughes is saying; remember who she works for.

Anyway, not much to see here, except another charm offensive from Team UPC and a think tank grossly overselling a 'study'.

Recent Techrights' Posts

Nat Friedman Had Left Microsoft GitHub Exactly One Week Before Matthew Garrett Sent His First SLAPP (Which Was an Empty Threat, He Was Abusing the Legal System of Another Continent to Terrorise Critics Who Had Just Unearthed Major Microsoft Scandals)
And it was likely talked about by his lawyers around the exact same time Nat Friedman was packing up
 
South Americans Are Saying Goodbye to Microsoft
We're hardly even "Cherry-Picking" or conveniently singling out one South American nation
Abuse Inside the Polish Patent Office (UPRP) - Part III: Data Protection Failures, Just Like at the European Patent Office (EPO)
Just less than a decade ago we showed that the EPO had illegally shared staff data with third parties
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, June 05, 2025
IRC logs for Thursday, June 05, 2025
Pushing Microsoft's Proprietary Trash/Trap as "Open" and "Linux" (Windows is 'Linux' Now?)
Maybe it's time to just stop saying "FOSS". The people who use that term are promoting Microsoft.
Slopwatch: Comparing Linux to Vermin, Attacking BSD With LLM Slop, and Helping Microsoft Demonise Linux/OpenBSD/SSH Over Weak User Passwords
Microsoft must be laughing its arse off, seeing how a bunch of Serial Sloppers (no skills, no comprehension, no integrity, no creativity) and slopfarms use Microsoft LLM to flood the Web with anti-Linux FUD
Links 05/06/2025: US Poised for Another $2.4 Trillion to Debt, Cops Want GAFAM Kill Switches
Links for the day
Links 05/06/2025: First US Spacewalk 60 Years Ago, GNU Octave 10.2.0 is Out
Links for the day
Scandinavia Saying Goodbye to Microsoft
The Danes have had enough of Microsoft
GNU/Linux Measured at 6% in Bangladesh, According to statCounter
Windows isn't growing, it's going away
Gemini Links 05/06/2025: Loop Earplugs Review and ANS Forth
Links for the day
Armenian Adoption of GNU/Linux
Russian influence in Armenian must be worrying to Microsoft
Abuse Inside the Polish Patent Office (UPRP) - Part II: Turning a Once-Respected Patent Office Into a Circus and Laughing Stock
It's not legal, but administrators who don't care about the law and don't fear the law would just go ahead and turn things to junk
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, June 04, 2025
IRC logs for Wednesday, June 04, 2025
Slopwatch: Mindless Slop Pieces, Fake Images and Text, Linux FUD on the Cheap
spewed out by Microsoft-controlled LLMs
Links 04/06/2025: Workers' Strikes, Sudan Exodus
Links for the day
Links 04/06/2025: Linux Foundation PR Spam and Lee Jae-myung Wins Election
Links for the day
Gemini Links 04/06/2025: Future Leaders of the World and Platforming Jordan Peterson
Links for the day
Links 04/06/2025: WSL Backfiring on Microsoft and "Disney, Microsoft Announce Massive Layoffs"
Links for the day
Our Case is a Very Easy Win, the SLAPPs From Microsofters Were a Grave Error, and Censoring Information Won't Work (It'll Only Ever Backfire)
Censoring is what people do when they lose the argument
Say the Truth, the Rest Will Follow
There's no guarantee that writing the truth will result in an audience (or readership), but over time - in the long run - people generally gravitate towards what they know or feel to be crude truth, not just what's comforting (albeit false or self-deluding, usually groupthink dictated from above)
How to Expose High-Level Corruption Without Getting in (Too Much) Trouble
Democracy depends on free press and freedom of the press depends on being able to safely publish (and keep available) material that bad people don't want to be known to anybody
In-Depth EPO Coverage at Techrights Turns Eleven
11 years is a very long time
Windows Measured Below 10% in Afghanistan, GNU/Linux Gaining a Lot
about 80% are Android (Linux) users, compared to only about 10% for Windows
Poland's Political Predicament and Social Control Media
Democracy and fake "tech" don't mix well; the latter tends to interfere with the former and that's why we get more "Putins" out there
EPO: Taking Away From the Staff to Give More to the Rich
The Central Staff Committee (CSC) wrote to EPO staff earlier this week
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, June 03, 2025
IRC logs for Tuesday, June 03, 2025
Abuse Inside the Polish Patent Office (UPRP) - Part I: It's a Lot Like the EPO
we can commence a series soon
Gemini Links 04/06/2025: Inescapable Questions and Quitting All "Oligarch Tech"
Links for the day