04.26.20

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Hope Alone Won’t Bring the Dead Back to Life; Team UPC Has Entered Embalming Stage

Posted in Europe, Patents at 4:07 am by Dr. Roy Schestowitz

Team UPC, 2015

Summary: That same old UPC ‘cult’ (Team UPC) wants us to think that miraculously enough — perhaps by means of ‘divine’ intervention — UPCA will somehow find a way

“On noes!”

“Not another article about the UPC!”

“The UPC is dead. It’s over now. UPCA won’t be ratified anymore.”No, no, don’t get us wrong. We won’t waste much more time on this 'carcass' legislation; neither will Team UPC, which has been mostly silent lately (and not because of the lock-downs). But a remark may be needed on this new article by Charles Russell Speechlys LLP’s David Fyfield, who speaks of UPC “hope” and pushes it into Lexology (likely for a fee); when he speaks of hope he means his own hope (projection tactics). The UPC is dead. It’s over now. UPCA won’t be ratified anymore. They keep pretending it’s merely a “Delay” (their word). But that’s a lie, knowing that there’s Brexit and regardless of Brexit there are constitutional issues in a number of countries other than Germany. Here’s what Fyfield decided to say a month after Germany buried the UPC:

The decision is a significant setback, as it further delays the introduction of the UPC and Unitary European Patent. It does, however, leave the door open for the adoption of the UPC in the future, provided that it is passed by the necessary majority. In a reaction to the decision the German Minister of Justice and Consumer Protection, Christine Lambrecht, promised to continue to work towards a single European patent and a European Patent Court and to examine the possibility of remedying the lack of form before the end of the current legislative period (which ends in 2021).

Due to the UK’s exit from the EU, and the British government’s decision not to try and pursue participation in the UPC (which was recently confirmed in a letter from the IP Minister to the House of Lords), it is unlikely that the UPC Agreement will come before the German parliament again in its current form.

Without the involvement of the UK, the Unitary Patent and UPC are a less attractive proposition. However, provided that there remains sufficient goodwill towards the project amongst the remaining participating states, the UPC Agreement could be renegotiated so that it does not depend on the involvement of the UK. There may even be an opportunity to address some of the issues that have been flagged in relation to the current Agreement and to widen its scope to allow participation by non-EU states.

Supporters of the unitary patent and UPC should therefore not entirely despair, but a further delay of at least several years looks likely.

Not really. They may reattempt with an entirely different text, name, and a slow-moving round of likely-failed ratifications (remember that countries other than Germany nowadays openly reject it, having had time to properly study economic impact and constitutional aspects). The momentum is long gone. It was already lost 3 or 4 years ago, but Team UPC kept manufacturing or fabricating false stories to pretend otherwise. As we last noted a week ago, the UK could not make it any more clear that UPC is out of the question now. Rachel Montagnon (Herbert Smith Freehills LLP) has just caught up with it, spreading the message in which she says “IP Minister Amanda Solloway has written to the House of Lords in response to their letter formally requesting confirmation that the UK would not be participating in the UPC. This request by the House of Lords followed a response given by the Government in February to a parliamentary question (recorded on Hansard) which said this was the case (see our post here); no formal statement had otherwise been made.”

So the UPC is basically dead. No UK, no UPC. Look at the UPCA. UK is a must, it’s not optional! If Team UPC denies it, then it is deliberately lying.

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