Deeply dishonest or blind to the simple facts

Summary: Team UPC is blinding itself; it is also attempting to hide from the public the very simple fact that UPC is now doomed (likely the point of no return)

READERS of ours would likely be aware that we've been tracking UPC very closely for a very long time. Much was at stake -- including software patents in Europe -- since the Battistelli era, which may have contributed to Brexit (the misconduct of the management at the European Patent Office (EPO) could not have helped, could it?).

It is worth stating upfront that our opposition to the UPC is purely practical and has nothing to do with António Campinos or Battistelli or Brexit or whatever. It's purely on technical or practical grounds. It has always been so. And sure, there's the legal ground/aspect too (e.g. violation of constitutions). With that in mind, let's examine what lawyers around Europe are saying now that the UK has, at least on paper, separated from the EU.

The VP of the EPO, Mr. Rowan, decided to tweet some hours ago (around 8PM on a Saturday): "Noticefrom [sic] the European Patent Office dated 29 January 2020... https://www.epo.org/law-practice/legal-texts/official-journal/information-epo/archive/20200129.html … via @EPOorg"

Let's put aside the motivation of this tweet (in the weekend, one whole day after so-called 'Brexit Day'). Just like Bristows “Business as Usual” LLP, the EPO carefully avoids mentioning that the UPC is now dead. Here's the EPO's 'tweet' about it -- a tweet which links to this page (warning: epo.org link). Notice the complete absence of UPC: (absurd, right?)

The European Patent Organisation is an international organisation established on the basis of the European Patent Convention (EPC). It is independent of the EU and currently has 38 member states, of which 28 are also members of the EU (incl. the UK) and 10 are not. The UK's withdrawal from the EU will consequently have no impact on its status within the European Patent Organisation.

The EPC establishes the procedure for the granting of European patents by the European Patent Office (EPO) for all its 38 contracting states. Hence, the procedure for obtaining a European patent before the EPO will not be affected by the UK's withdrawal from the EU. This applies equally to any opposition and appeal proceedings, as well as to any limitation and revocation proceedings. Furthermore, UK citizens and natural persons domiciled in the UK, as well as legal persons based in the UK (as governed by its national law) will still be able to file European patent applications. Under the EPC, anyone can file a patent application with the EPO, irrespective of nationality, residence or place of business.[ 1 ]

The UK's status as a contracting state to the Agreement on the application of Article 65 of the Convention on the Grant of European Patents (London Agreement)[ 2 ] will likewise remain unaffected by its withdrawal from the EU. Consequently, patent holders will remain exempt from filing any translations of European patents granted for the UK, after its withdrawal from the EU.[ 3 ]

On it goes, not mentioning the UPC even once. How could they have missed such a crucial point? This would not be the first time they attempt to give such an impression (that the UK is still fully on board because of the EPC, without bothering to mention the UPC membership). This is carefully-crafted propaganda, based upon convenient omission. They could always come up with reasonable-sounding excuses for the omission.

The National Law Review has just published this piece by Bud Ehrlich (Winstead). Entitled "Happy BREXIT Day!" it has no mention of the UPC, an EU system. To quote: "European and UK patents are not impacted by Brexit. The European Patent Office (EPO) is established under the European Patent Convention (EPC). The EPC is separate from the European Union and the UK is, now, one of several non-EU contracting states. The EPO will continue to validate “European” patents in the UK and the UK will continue to grant UK national patents."

UPC omitted. How curious.

We've also noticed James Nurton at Watchtroll (same Nurton who promoted UPC at Managing IP, a think tank which even helped the EPO manage their lobbying/propaganda events for UPC). "Brexit is Finally Happening: Here’s What to Expect for IP" was the headline (link omitted because it's Watchtroll). UPC wasn't entirely left out as there's one single sentence about it, highlighted below:

Unitary Rights after Brexit

EU trade marks and registered Community designs will remain in force in the UK during the implementation period, after which they will be converted automatically into UK rights. EUIPO published updated information on Brexit on January 27, stating that “all proceedings before the Office that involve grounds of refusal pertaining to the territory of the UK, earlier rights originating from the UK, or parties/representatives domiciled in the UK will run as they did previously, until the end of the transition period”.

The UKIPO has also published guidance, in particular confirming that it will convert almost 1.4 million EU trade marks and 700,000 registered Community designs to comparable UK rights which will come into effect on January 1, 2021. Applicants that have applications pending at the end of the implementation period will have nine months in which to apply in the UK for the same protections.

Patents and the EPO

The European Patent Organization, which has 38 Member States, is not part of the EU. The UK has no plans to leave the EPO so European patents are unaffected by Brexit and European patent attorneys in the UK can continue to act before the European Patent Office.

However, there are some aspects of patent law that do have an EU dimension. One of these is the grant of Supplementary Protection Certificates for pharmaceutical and plant protection products. SPCs are granted as national rights and will continue to be examined under the current framework in the UK, though in time the law might diverge. The EU Biotech Directive also has an impact on patents, as do certain provisions of EU competition law, for example in FRAND cases. The proposed Unitary Patent and Unified Patent Court are not yet in effect as a challenge before the German Constitutional Court is still pending.

He says they're "are not yet in effect" as if it's only matter of time and he also pretends that the sole barrier is this complaint. That's a lie that understates the severity of the situation. Given Brexit, even the government in Berlin would not ratify (irrespective of what the FCC says). There's no point ratifying something which is already dead in the water.

Herbert Smith Freehills LLP's Rachel Montagnon meanwhile says "the unitary patent is not yet available".

Hmmm... not yet available?

It's dead. Law firms don't exactly lie when they say this; they just deliberately give a false impression.

Then they use Lexology to amplify this nonsense. Here's the sentence in full: "There is little in the way of patent provision in the WA as the unitary patent is not yet available (awaiting the introduction of the Unified Patent Court to enforce it, which in turn appears to be awaiting the outcome of Brexit, and perhaps even subsequent UK-EU trade negotiations)."

As if some "trade negotiations" would magically render the UPC a non-EU system? Impossible.

The IAM folks, the EPO-funded (bribed) think tank for the UPC, have also weighed in. Yesterday we spotted their parent company posting no less than 4 pointers to self-promotional pieces entitled "IAM Global Leaders 2020" and the first one concerned Hugh Goodfellow. To quote the part about UPC:

How do you expect the European patent landscape to evolve over the coming years?

The obvious thing to mention is whether the unitary patent and the UPC systems will come to pass with the fallout from Brexit and the German constitutional challenge. One other thing to watch is how the patent system copes with the growing new fields of connected and digital health and inventions involving AI. I think patent firms will need to evolve the way in which they organise their practice groups away from the historic splits between life sciences, chemistry and engineering and towards sectors that combine expertise between, for example, molecular biologists, data scientists, bioinformatics and tech experts, and form interdisciplinary groups of attorneys who can acquire deep knowledge of these new fields.

Notice the UPC theme. It's promoted and repeated again in this Michaël Beck page, which says:

How do you expect the European patent environment to develop over the next few years?

For the past few years, European patent professionals have been eagerly awaiting the EU patent package (ie, unitary patent protection and the UPC). Various political and legal factors have made the future of this project very uncertain. However, whether or not the UPC eventually comes to fruition, I am hopeful that the spirit of this project will survive and eventually lead to more consistency and coherence in court decisions across the different European states and more efficient inter partes proceedings both in the national courts and before the EPO.

When he says "European patent professionals" he means lawyers. The next one, concerning Heinz Goddar, said this: "I am also sceptical about the proposals for unitary patents and the UPC. The latter system in particular is much too complicated and expensive, particularly for small and medium-sized enterprises."

Some honesty for a change...

Here's the full answer:

How do you expect the European patent environment to evolve over the coming years?

I am deeply sceptical about the pending EU patent package system. It is possible that there might be a return to the old idea of a community patent for larger geographical areas (eg, the European Union). I am also sceptical about the proposals for unitary patents and the UPC. The latter system in particular is much too complicated and expensive, particularly for small and medium-sized enterprises. Time will tell what happens to the current EU patent package after Brexit. I believe (and I could be wrong) that the German Constitutional Court will need another two to three years to decide whether, and in which form, Germany will revise the ratification process concerning the EU patent package. It is possible – and for some scholars probable – that the Constitutional Court will shift the pending complaint to the European Court of Justice (ECJ), with the aim of getting a comment from that court of supremacy in the EU package system, particularly if the United Kingdom does not want the ECJ to continue to have the final word in the UK patent system.

There's one more with Gary Wilson:

What single development would most improve the patent protection regime in the United Kingdom and Europe?

Although they have been a long time coming, the unitary patent and the UPC – when they come into existence – will supplement and strengthen the unitary patent granting system that already exists before the EPO. The UPC and the unitary patent should make it easier and faster to conduct litigation across many European countries and obtain injunctions where necessary. The process will significantly reduce translation costs and provide a simplified renewal fees system. Over time, the system will hopefully provide more certainty to clients compared with the current system, where different European jurisdictions can decide the same case in different ways.

He says "when they come into existence" as if it's inevitable. Keep dreaming.

An EPO-connected publication (we wrote about the connection before) has meanwhile published some EPO figures. "Per capita," it says, "UK entities file fewer European patents than Switzerland" (the leading nation in this regard, even if the applicants are not necessarily Swiss).

Very low ranking for the UK on European Patents:

According to data from the European Patent Office (EPO), in 2018, UK companies filed a total of 5,736 European patents.

EPO records show UK companies file 88.1 patents per million inhabitants, a ratio lower than Switzerland, Netherlands, Denmark, Sweden and Germany.

So this may actually lower the attractiveness of the UPC (or anything like it) for British firms other than law firms. Years ago we took note also of a sharp decline in EPO recruits from the UK. It collapsed. Did the media report on this? Never. London-based law firms prefer for people not to notice this trend. It ruins the bogus narrative they keep pushing about British SMEs and so on. ⬆