EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

11.09.19

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

Posted in Deception, Europe, Patents at 11:46 am by Dr. Roy Schestowitz

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’.

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email
  • Slashdot

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. The Militarised Elephant in the Room Still Commands a Lot of Free Software Development

    We take a difficult (albeit in-depth and perfectly factual) look at IBM's past and present; considering this is the company that controls Red Hat (which in turn controls many key projects in GNU/Linux) we need a better understanding of the real context, not PR fluff and marketing



  2. Juve Patent's Love of Patent Trolls and Their Misinformation

    The press 'gutter' known as Juve (basically propaganda disguised as 'news' since years ago) has gotten to the point where the publisher is just an extension of lawyers and liars



  3. IRC Proceedings: Friday, October 23, 2020

    IRC logs for Friday, October 23, 2020



  4. Look How Many Tux I Give!

    "Long live rms, long live (Hyperbola) GNU/BSD, and happy hacking."



  5. Embrace, Extend, and Extensions: Two New Reasons to Delete GitHub, Which Microsoft Ruined for Everyone (Except the Copyright Cartel and Other Censors)

    GitHub is being turned into a garbage dump with malicious masters (or monsters, or mobsters); many people are denied access for using the 'wrong' browser and developers/projects are being censored (not for doing anything wrong or illegal, either)



  6. [Meme] When EPO Staff Claims to be 'Ill' or 'Sick'... During a Pandemic's European Peak

    Gotta check and verify that those 'lazy' EPO examiners aren't just faking being ill (in order to not meet "production" targets)



  7. The EPO Has Relegated or Lowered Itself to Extremely Poor Standards

    Today's EPO continues to reaffirm the image of global weakness; having failed to improve the working conditions and quality of the work (its actions did the exact opposite), it's nowadays begging China to send over lots of workload irrespective of quality or merit and it is outsourcing the functions of the Office to the United States



  8. Links 23/10/2020: Turing Pi 2, GNU Parallel 20201022

    Links for the day



  9. IRC Proceedings: Thursday, October 22, 2020

    IRC logs for Thursday, October 22, 2020



  10. Links 23/10/2020: 'Groovy Gorilla' Everywhere in the News

    Links for the day



  11. For Better 'Tech Rights' in the United States (and the World at Large) the 'Orange Man' Needs to Go

    With less than a fortnight before election day we explain our stance from a purely tech-related rationale



  12. [Meme] Microsoft Never 'Brought' Skype to GNU/Linux (It Just Bought Skype) and It Never 'Brought' Edge to GNU/Linux Either (Google Did)

    Foolish media or gullible 'journalists' are giving Microsoft credit for other people's work; this isn't the first time either, but it helps perpetuate lies such as "Microsoft loves Linux" (so who cares about facts anyway?)



  13. It's Going to be a Long, Long Winter

    Today we revert back to lock-down mode; we're reflecting and pondering what comes next



  14. TechRadar is an Irresponsible Clickbait and Misinformation Site Disguised as 'News'

    TechRadar is no tech and no radar, either. It's just an opportunistic click-harvesting machine, disguised as a source of "news"; today we deal with the latest example (among many).



  15. Links 22/10/2020: LibreOffice 6.4.7, Septor 2020.5, Ubuntu 20.10 Released, FreeBSD Quarterly Status Report

    Links for the day



  16. IRC Proceedings: Wednesday, October 21, 2020

    IRC logs for Wednesday, October 21, 2020



  17. Living Humbly (With Older Technology or None) is More Compatible With Privacy- and Freedom-Respecting Technological Lifestyle

    Simplicity sometimes trumps so-called 'novelty', especially when it comes to human rights and users' freedom



  18. Reasons Why You (and Everybody Else) Should Join the Fight for Software Freedom

    Society is being closely watched and controlled (more so during/after the latest pandemic) and people must carefully consider the true importance of resisting proprietary technology (controlled remotely by state actors)



  19. Ways and Means to Reduce One's Dependency on Google's Various Monopolies and Near-Monopolies

    Getting rid of Google means a lot more than embracing DumbDumbGo (DDG) or some other sites that spy just like Google; we're taking stock of some options



  20. The European Commission is Still M.I.A. Regarding EPO Corruption (and the EPO's Management Plays Dirty, as Always)

    There's no change in the EU; the EUIPO and EPO enjoy complete and total immunity/impunity, with the Commission being manned by those who are deeply complicit



  21. 10 Reasons Why All This 'Edge for Linux' Coverage is a Total Farce

    The fake hype surrounding "Edge" is an inauthentic hype/buzz campaign made to coincide with anti-Google sentiments spread by Microsoft front/pressure groups



  22. Microsoft's IIS Has Collapsed Again This Past Month (and IIS Will Not and Cannot Survive This Way)

    Netcraft shows that Microsoft's decline further accelerates in the Web servers space; IIS is becoming financially unviable



  23. Links 21/10/2020: Alpine 3.12.1, Tor Browser 10.0.2

    Links for the day



  24. [Meme] US Department of Justice Should Have Taken on Microsoft Again, Not Google

    When lobbying, connections and political sway determine the actions of the American government it's hardly surprising that Bill Gates gets the Trump administration to fight for him (to make him even richer)



  25. [Meme] Banning Words, Gaslighting Volunteers

    What happens when institutions are themselves in violation of a CoC (institutional violation) and massive corporations that fund such institutional violations are defending demonisation of the individual (squashing ‘uncomfortable’ voices, even volunteers’)



  26. IRC Proceedings: Tuesday, October 20, 2020

    IRC logs for Tuesday, October 20, 2020



  27. Links 21/10/2020: $8000 GNU/Linux Desktop, Tails 4.12, Open Infrastructure Foundation and Firefox Release

    Links for the day



  28. Never Feed the Internet Trolls, No Matter How Tempting It Becomes

    The tactics for removing critics of abuse (by framing them as "abusive") have evolved a lot in recent years; the best course of action is to never entertain provocateurs in any way whatsoever (just ignore them, give them no attention which they crave and feed on)



  29. Bill Gates: “I'm Not a Lawyer” (He Dropped Out of College, Where He Studied Law Before and After Breaking the Law Chronically)

    How Microsoft blackmailed other companies into supporting nothing but Microsoft and Windows; Bill Gates repeatedly lied to the interrogators about it, then said "I'm not a lawyer" (IANAL) even though he went to college to become one, just like his father who died last month



  30. Microsoft Has Not Changed Since Being Investigated (and Prosecuted) for Crimes at a Federal Level

    The media keeps telling us a bunch of worthless junk about Gates "saving the world" and Microsoft becoming a "nice" and "gentle" (or "soft") company, but nothing could be further from the truth


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts