Summary: The Unified Patent Court (UPC) is more dead than ever before; but UPC hopefuls -- people who lied their way into this fraudulent pact (designed to enrich only themselves by violating many constitutions) -- try telling us otherwise and they're weaponising corrupt media

THE past few days have been hectic here for technical and personal reasons (namely workstation failure). Thankfully, however, not much happened at the European Patent Office (EPO). No misleading press releases, no further stunts from Team UPC, and no additional António Campinos photo-ops or Battistelli scandals.

Our latest Daily Links included some outcomes of court cases regarding patents granted by the U.S. Patent and Trademark Office (USPTO). It's just more of the same, i.e. 35 U.S.C. ۤ 101 squashing software patents. We've also included additional articles about DABUS and CRISPR -- patents or applications that aren't patent-eligible.

"Team UPC did not vanish overnight and it won't just stop lying, either."In previous coverage of ours we explained why UPC is dead and how Team UPC keeps twisting it or ignoring it [1, 2]. There's a little bit more on that and we don't want to move on without addressing the latest misinformation. Team UPC did not vanish overnight and it won't just stop lying, either.

The other day we mentioned Finnegan, Henderson, Farabow, Garrett & Dunner, LLP with its "Nothing Has Changed" article, which it has since then spread to more sites. The subtlety here -- likely a deliberate bit of propaganda -- is that UPC/A is fine. But nothing could be further from the truth. We'll explain below in response to additional articles.

There's a new article, "Brexit and the Transition Period for IP Rights". This new article by Roisin McNally -- promoted here not too long ago (again) -- is rather typical. The 'unitary' patents are altogether omitted by those who stand to lose from the UPC's death or its demise, notably law firms. This is all it has to say about patents:

Patents

Applicants can apply for a European patent through UKIPO or direct to the European Patent Office (EPO) to protect a patent in more than 30 countries in Europe, using the European Patent Convention (EPC).

As the EPO is not an EU agency, leaving the EU does not affect the current European patent system. Existing European patents covering the UK are also unaffected.

European patent attorneys based in the UK continue to be able to represent applicants before the EPO.

EU trade marks (EUTM) and Registered community designs (RCD)

The UK will remain part of the EU trade mark system and the EU registered community design system throughout the transition period that ends on 31 December 2020.

EU Trade Marks (EUTM) and registered community designs (RCD) will continue to extend to the UK during this time.

Comparable UK trade mark and design rights will be created by UKIPO by the end of the transition period under the terms of the Withdrawal Agreement.

Businesses, organisations or individuals that have applications for an EUTM or a RCD which are ongoing at the end of the transition period will have a period of nine months from the end of the transition period to apply in the UK for the same protections.

Nobody would dispute this, but this is the kind of spin used by CIPA some years back. They talk about the EPC instead of the UPC.

UPC not even named, mentioned etc.

UPC means EU (it's strictly an EU system), and if people think deeper about what that means to European Patents that are (or were) supposed to be 'unitary', the 'demand' for such patents would decline, reducing the cashflow to the author's employer.

As expected, the lies regarding Milan have already begun -- anything to distract from the death of the UPC. Check out this article from Kluwer Patent Blog, the comments in particular. It's probable that the author is someone from Bristows LLP.

It's by "Kluwer Patent blogger" (Team UPC no longer puts its name on what it says; this might be Bristows) and the other blog posts in the blog (not much published this past week) was by Bristows' Brian Cordery, amplifying Ben Millson who framed a "defence" as "excuse". They're boosting the largest German patent troll (maybe a client of theirs), IPCom. Speaking of Bristows LLP, after early retirements by Team UPC liars we now learn (a few hours ago) that Annsley Merelle Ward is leaving Bristows. She won't be leaving IP Kat though; she promoted software patents and UPC in that blog, along with FRAND/SEP agenda. "Our AmeriKat," they've just said, "Annsley Merelle Ward is returning to her US roots when she joins US firm WilmerHale as Counsel at the end of the month in their London office based in Mayfair."

She's relatively new in that blog, which was 'taken over' by patent maximalists over the years.

Anyway, going back to Kluwer (it remains 'taken over' by patent maximalists), let's examine the first comment, posted by "Concerned observer" on February 6^th at 6:00 PM. He or she said:

Nice to see publication of another example of a more realistic assessment of the chances of the current UPC Agreement ever entering into force.

I doubt that any time soon we will see anything even remotely as realistic as this from the EPO (or from any of the usual collection of pro-UPC commentators). That is a shame. Whilst the fat lady may not yet have sung, the writing is certainly on the wall.

Is there anyone out there who seriously believes that the UK government will do the only thing that stands a chance of making the UK’s participation in the UPC Agreement permissible after 2020, namely sign up to the jurisdiction of the CJEU in respect of all of the aspects of EU law that might possibly have a bearing on cases before the UPC? Indeed, is there anyone out there that seriously expects that, before the end of 2020, free trade negotiations between the UK and the EU will even get close to addressing an agenda item so far down the list as the UK’s participation in the UPC?

The UK and the EU have much bigger (and equally tricky) fish to fry before they start worrying about the UPC. For starters, there is the UK’s continued participation in up-and-running projects such as the Galileo satellite navigation system and the European Medicines Agency. There is of course a chance of surprise events that surpass expectations, as happened when a large serving of fudge was used to resolve the Irish border issue. However, forgive me if I remain sceptical.

With regard to those that nevertheless remain optimistic, I can only say that there is surely a point at which optimism becomes blind. Even if we have not reached that point quite yet, it will take a miracle to stop us getting there.

Finally, can I suggest that this would perhaps be an opportune moment for the legal profession in Europe to invest time and effort into putting together a successor to the UPC Agreement that addresses all of the (numerous and highly problematic) legal flaws in the current Agreement that have come to light? Full compliance with EU law (including the Charter of Fundamental Rights), national constitutional laws and the separation of powers principle would be a good starting point, as would improvements in the accountability and democratic legitimacy of the organs, committees and rules of the court. A big challenge sure enough, but there ought to be the legal talent out there to handle it.

The post has since then been made more visible via Benjamin Henrion, who apparently annoyed the same person who doesn't wish to be quoted by me. "A diplomatic conference of all UPC states would therefore not be necessary to make amendments to the UPCA and its Statute," Henrion quotes, adding that "Captive unelected law makers changing the treaty on the fly as they wish, very far from democracy."

"A new slogan for the yellow tshirt," he retorted, would say "NO unitary software patents, NO power to the parliaments" [as] "The elected legislator has committed suicide in patent law, international law makers are not elected, Parliaments and people don't have a say..."

Jan Van Hoey posted a comment the following day to say: "If Germany ratifies now, they would break the AETR caselaw, by making deals with non-EU countries. AETR was used during the debate on EPLA to exclude non-EU countries from participating, such as Swizerland or Turkey. And Germany would expose itself to a second constitutional complaint. But we have seen worse in this file."

Francisco Moreno, a longtime sceptic of the UPC, responded to Juve (it is a pro-UPC spinner in the pockets of UPC lobbyists in recent years). Quoting and citing Mathieu Klos he tweeted humourously: ""the appetite remains for the UK to remain part of the UPC – at least in some circles”, whose radii are decreasing "Germany is broadly in favour of the UK’s continued participation in the UPC" because I say so. "

When Klos alludes to "many in the European patent market" he means "the patent lawyers who pay my salary to speak/spread lies for them..."

Watch what an article they've composed, featuring subjective 'experts' like Winfried Tilmann and Simmons & Simmon (the usual talking points and talking heads of Team UPC). Klos wrote: "Brexit has begun. What this means for intellectual property [sic], and specifically the Unified Patent Court project, is still undetermined. But many in the European patent market are quietly confident that Brexit doesn't spell the end of the UK in the UPC..." (this is what they want to believe)

We see that Juve's Amy Sandys is still little but a megaphone of Team UPC (with insufficient grasp to sceptically assess what these liars tell her) -- that's a shame as it makes Juve seem corrupted!

Remember that their 'English' site (German actually) came into existence primarily for this. They're like lobbyists basically, with the veneer of 'journalism' (speaking to not a single critic of the UPC!). Henrion has responded to this load of nonsense by quoting: "Furthermore, Italy is also said to be unhappy with the idea of UK participation. No UK in the UPC would make it more likely for Italy to become a central division. Perhaps it would even takeover the UK’s planned pharmaceutical division capabilities."

This is the same lying pattern we saw at Kluwer. On they go speaking about Milan and Italy. Out come the corrupt 'journalists' with talking points handed to them from their Team UPC clients/subscribers who seek to violate constitutions for profit.

Never mind facts, never mind reality...

Remember: it's all about money. The money is in lying, spin, lobbying...

This post won't be complete without some 'suppressed' views; Law 360 only touches UPC behind paywall (i.e. accessible to the choir), just like this other article it published ("What Brexit Will Mean For Intellectual Property Law"). "While the legal relationship between the U.K. and the European Union changed fundamentally on Jan.31, there will be little immediate or practical difference," they say. The part about the UPC, however, is again behind paywall. And it contradicts that earlier sentence.

Facts don't seem to matter anymore.

Rachel Montagnon (Herbert Smith Freehills) wrongly asserts or makes it seem like UPC is coming. In reality, it's dead. Are lawyers paid to lie for profit? She was pushing this into multiple sites [1, 2] last week and said:

Patents: 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). The EPO system for central application for European patents will continue unaffected. Supplementary protection certificates (SPCs) for both plant protection and medicinal products are dealt with in the WA however. These are national rights granted by national IP offices under rules set out in EU Regulations. As such they will continue as national rights in the UK if granted before the end of transition. Where there are applications which were submitted to the UK IPO before the end of transition they will be judged according to the current EU Regulation rules and any certificate granted will give the same protection. For more on the process of application for SPCs going forward and on paediatric extensions see the HSF Legal Guide to Brexit. See also the UK Government's guidance on patent law and SPCs issued on 30 January 2020, here.

When you say it's "not yet available" you clearly imply that it's coming soon. That's a lie, Montagnon, and if you don't wish to be called liar, then choose the words more carefully. We've been seeing these sorts of lies for years. It has got to stop at some stage; if January 31^st isn't it, then you are clearly delusional and may wish to visit a psychiatrist. The head isn't functioning or deliberately lying is the real goal. That makes you and the firm look bad. ⬆