(Mentally) Ill man or Tilmann?

Summary: The courts in the United States and in Europe are pushing back against the cabal of litigation firms and patent trolls; instead of evolving, as they ought to, law firms charge against truth itself

THE legal 'industry' does itself no favours any time it lies and cheats, emboldening those who accuse it accordingly.

Check what Watchtroll published today: "Using Alice’s Approach to Patent-Eligibility to Draft Patent Claims" (link omitted, as usual, but that's the headline, which can be searched).

"The legal 'industry' does itself no favours any time it lies and cheats, emboldening those who accuse it accordingly."So another patent fanatic tells us how to break the rules to get fake patents like software patents. Instead of just advising against it... knowing the extremely low legal certainty associated with those.

But wait, it gets worse. Hours ago we found this self-satirising nonsense entitled "Period of provisional application Unified Patent Court Agreement can start this year" (this is their headline, putting quotes around the lie so as to amplify it without taking responsibility for it!).

"Concerned observer" asked, having detailed the actual situation, "bearing all of this in mind, why would any sane lawyer think that it is a good idea to press ahead regardless?"

Here's the full comment, which is far more accurate than any single sentence of the anonymously posted ("Kluwer Patent blogger") propaganda piece:

“It may be derived from Art. 25(2) VCLT governing provisional application that before that date cancellation by a State is possible by simple notification”

Well, you have got to hand it to Herr Tilmann. I mean, who else could have come up with the idea that a “simple notification” from a Contracting State could have the same effect as formal withdrawal of an instrument of ratification?

I had been under the impression that, unless and until it withdraws its instrument of ratification, a State that has ratified an international treaty not only remains a Contracting State to that treaty but is also legally obliged (by Article 18(b) VCLT) to “refrain from acts which would defeat the object and purpose” of that treaty.

I had also been under the impression that Article 25(2) VCLT only applies if and when a treaty is subject to provisional application … which, of course, will NOT be the case for the UPC Agreement unless and until Germany ratifies the Protocol on Provisional Application (PPA).

Of course, if the UK does withdraw its instrument of ratification of the UPC Agreement, then this means that the PPA cannot enter into force. This is because Article 3(1) of the PPA makes the UK’s ratification of the UPC Agreement a requirement for entry into force of the PPA. It may also have terminal consequences for the whole Unitary Patent Package.

On the other hand, if the UK does NOT withdraw its instrument of ratification of the UPC Agreement, then CJEU opinion 1/09 makes it clear that Agreement will contravene EU law (at least after the end of 2020).

So, pressing ahead without any clarity regarding the UK’s position means either that there will be no provisional application period (with consequences including making it impossible to recruit judges) or that the court will contravene EU law. And this is without even considering the possibility that Germany may now be precluded from ratifying the UPC Agreement, either by the AETR case law of the CJEU or by its own Basic Law (as per para 166 of the FCC’s decision).

So, bearing all of this in mind, why would any sane lawyer think that it is a good idea to press ahead regardless?

Another commenter carried on: "and patentees worldwide are waiting for such completion of the European patent system to come for the same long period. As far as I can see, German inventors and industry are continuing their strong support for this modern system completing, at the court level, the central grant system of the EPC [.] I see you’re working more for non-EU countries. And a few select, multinational German companies, whose opinions are therefore the ones you can see. I wonder what the BVerfG will say if called upon again, and pointing to the flaws otherwise indicated in their opinion, and why Government has not commented or reacted upon those."

"So another patent fanatic tells us how to break the rules to get fake patents like software patents."And from Jan Verbist (slightly reformatted comment): "No question asked about the constitutional complaints. No mention of the court decision on “this agreement is only open to EU member states”. No mention neither of the more expensive costs of defense for SMEs [PDF]. IPO: “The costs of the new system are likely to hit SMEs the hardest.”"

As we said this morning, Germans need to press on and defend their constitution, which is under attack by Tilmann et al (see what they did to the Italians). ⬆