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

03.29.20

The Fall of the UPC – Part IX: Campinos Opens His Mouth One Week Later (and It’s That Hilarious Delusion Again)

Posted in Deception, Europe, Patents at 8:40 am by Dr. Roy Schestowitz

The funny thing? Even Team UPC isn’t buying the spiel of António Campinos, deputy clown of wannabe UPC chief.

Reichstag in Berlin

Summary: Team Campinos said nothing whatsoever about the decision of the FCC until one week later, whereupon Campinos leveraged some words from Christine Lambrecht to mislead everybody in the EPO’s official “news” section

THE European Patent Office (EPO) is definitely and undoubtedly a constant source of fury but also an occasional, part-time source of entertainment and amusement because amid all the scandals there are cover-up attempts and hollow face-saving ambitions that verge on black comedy. It’s not everyone’s cup of tea, but humour is the best medicine when corruption is neither pretty nor funny.

In the previous part (part 8) we covered Team UPC’s shameless spin. It painted the UPC’s death as “life” and bad news (to them) as “actually good news in disguise” or something along those lines. Psychologists and psychiatrists leverage if not ‘prescribe’ such methods.

“Psychologists and psychiatrists leverage if not ‘prescribe’ such methods.”Over at Bristows, the latest blog post is Gregory Bacon’s spin that says: “Although the complaint regarding the Bundestag majority was held to be admissible, that was only by the narrowest majority of the Senate’s eight Justices, i.e. five votes to three.”

Like athletes who say, “I lost only by two seconds.”

Courts don’t work that way. The decision doesn’t come with a “score”.

“Yeah, Johnny, I lost the case, but some people in the jury liked me… see you when I get out of prison!”

It is definitely worth noting that the EPO (management, President, Vice Presidents) waited silently for whole week and abstained from saying anything at all about this blow in the FCC (Team UPC keeps breaking the law) until some lying politician opened the mouth and was possible to quote selectively. EPO management never looked this desperate.

“It is definitely worth noting that the EPO (management, President, Vice Presidents) waited silently for whole week and abstained from saying anything at all about this blow in the FCC…”For those who missed it (this did not receive much publicity), in the German language Christine Lambrecht wrote this little page and the EPO jumped all over it, tweeting the sheer spin of Campinos (warning: epo.org link) as though it is “news”. To quote:

The European Patent Office (EPO) strongly welcomes the announcement of the German government to continue its support for the introduction of the Unitary Patent system in Europe.

In a statement made yesterday on the country’s ratification of the Unified Patent Court (UPC) Agreement, German Minister of Justice and Consumer Protection Christine Lambrecht expressed her intention to “carefully evaluate the decision of the Federal Constitutional Court and examine possibilities to remedy the identified lack of form still in the current legislative period.”

The EPO’s official “news” section has increasingly become a platform of propaganda. For a whole week nothing at all was said about the FCC’s decision. And now this from Christine Lambrecht?

They don’t even pretend to be objective. The above is a bunch of nonsense (quotes) from Campinos. He’s ‘pulling a Battistelli’ again. He’s neither honest nor good. He’s a charlatan and a fraud.

Even biased lawyers who run IP Kat (not the old site called IP Kat; it changed) have just reiterated the nature of this decision, saying “this decision will set the UPC back 5 years!”

“They don’t even pretend to be objective.”Magdaleen Jooste wrote: “The German constitutional court upholds complaint against UPC Agreement and implementing act! Read the decision here. It is reported that this decision will set the UPC back 5 years! The main reason for the decision was that the act by which Germany was to ratify the UPC Agreement, was not passed with the required parliamentary majority. Léon Dijkman provided a detailed analysis of the decision by the German constitutional court.”

We probably won’t quote many comments from that blog anymore; IP Kat censors many comments, ‘sanitising’ views it does not agree with because they don’t share the agenda of today’s IP Kat editors.

Anyway, the above “news” from the EPO site makes it rather clear that the “clean” EPO management (Campinos and his mates from EUIPO) is still looking to break the law and violate countless constitutions. It cherry-picks polticians that it selectively cites like a one-party military-turned-state North Korea.

If this does not repulse patent examiners, we wonder what will…

My friend Benjamin Henrion translated Lambrecht as saying: “I will continue to work to ensure that we can provide the European innovative industry with a single European patent with a European patent court.”

You cannot.

“Anyway, Lambrecht may wear something that says “Europe” on her lapel or sleeve. She might also wave a bunch of yellow-blue flags, but clearly Lambrecht misses the point. What Europe needs is a lot more than shallow rhetoric — the type of thing EPO staff has grown tired of.”“Well, Chinese and American industries as well,” Henrion remarked, for “2/3 of patents in Europe are given to them…”

“Most of their “clients” aren’t European. It’s a class (monopoly) thing, not a regional thing,” I told him

Just because the “E” in EPO says “European” doesn’t mean it works for Europe and for Europeans. It employs many, sure, but whose agenda does their work serve? Usually very rich people’s. No, not rich Europeans. Just rich people. Corporations. Multinationals. Monsanto, Exxon, Microsoft, Facebook, Amazon…

Huawei untrustworthy? Serving the Chinese military? Danger to Europe? Guess who receives the most European Patents…

Anyway, Lambrecht may wear something that says “Europe” on her lapel or sleeve. She might also wave a bunch of yellow-blue flags, but clearly Lambrecht misses the point. What Europe needs is a lot more than shallow rhetoric — the type of thing EPO staff has grown tired of. Trampling on workers — and on all people — in the name of “unity” won’t make people more united; it might unite them against those who misuse those shiny labels in the service of goals that crush human rights.

Team UPC megaphones absolutely adore Lambrecht for what she said. JUVE is among them. JUVE reinvented itself as lying propaganda and we’ll say a lot more about JUVE’s role in UPC lobbying later in this ongoing series. As Henrion put it: “German Ministry of Justice keeps pushing for the UPC, JUVE interprets it as “Bundestag will vote again” https://www.bmjv.de/SharedDocs/Pressemitteilungen/DE/2020/032620_Patentreform.html … https://www.juve-patent.com/news-and-stories/legal-commentary/german-government-announces-intention-to-move-forward-with-upc/ … This is not possible as Rules of Procedure are not made by parliament(s).”

“We’ll have a lot more to say about JUVE’s poor coverage later in this series.”True, it is not possible. If anything, this serves to show that the German Ministry of Justice does not understand the law. Yes, the irony. One might expect this from Donald Trump’s USDOJ, not Germany’s Ministry of Justice.

JUVE’s editor tweeted: “UPC latest: just six days after the judgment of the German Constitutional Court, the German government announces its intention to move forward with the Unified Patent Court.”

Did you fact-check, JUVE?

We’ll have a lot more to say about JUVE’s poor coverage later in this series.

What’s being suggested here is illegal and there would be further complaints against overt corruption. This, we might add, might be expected from Donald Trump. Are his grandfather’s relatives still in Germany and getting involved in such reckless politics based upon will and dogma rather than underlying laws and a constitution? Does the FCC have its authority diminished to mere “advisory”?

It’s not only us pointing this out by the way; “Kluwer Patent blogger” (oftentimes Bristows) published “Despite FCC ruling, Germany wants to push ahead with Unitary Patent system” and tweeted this bunch of nonsense only to be blasted in the comments, as usual. Immediately one person wrote: “And don’t forget the Rules of Procedure made by an administrative committee, which is contrary to the caselaw of the FCC, and caselaw of the ECHR on art6.”

“Even Team UPC boosters don’t quite buy the laughable spiel of Campinos and Christine Lambrecht; nor should they if they choose to become grown-ups and realistic rather than jingoistic self-serving liars.”“Concerned observer” wrote: “From the Ministry that brought you the late night shenanigans that ultimately killed the law approving the UPCA we are now served up a new strategy that has all the makings of another farce.

“Why prolong the agony and uncertainty? Why not state the obvious and acknowledge that, at the very least, the first step that will need to be taken is renegotiation and amendment of the UPCA? What is to be gained by not admitting that it will take more than just another vote in the Bundestag?

“Deeply disappointing.”

A vocal UPC booster in Munich quoted: “So a simple re-run of the previous approval law with the same UPCA text will not work. It would most probably also be contrary to EU law if Germany were to ratify an agreement that transfers sovereign rights (part of its jurisdiction)to an international court that is currently/2 https://twitter.com/kluwerblogger/status/1243477267629641728 [] partly located outside the EU and in a state which has explicitly declared that it is not minded to follow EU law and does not want to be subject to the jurisdiction of the CJEU.“

Even Team UPC boosters don’t quite buy the laughable spiel of Campinos and Christine Lambrecht; nor should they if they choose to become grown-ups and realistic rather than jingoistic self-serving liars. No, UPC isn’t for “SMEs” and it was never designed for them, either. The exact opposite is true.

03.27.20

The Fall of the UPC – Part VIII: Team UPC Celebrates Death, Not Life

Posted in Deception, Europe, Patents at 5:04 pm by Dr. Roy Schestowitz

Any dying wish? UPC by next year? Not gonna happen, buddy

Summary: Team UPC plays psychological games now; it is trying to twist or spin its defeat as good news and something to be almost celebrated; it is really as illogical (and pathetic) as that sounds

TEAM UPC is beyond insane. It’s clinically insane. It’s devoid of sanity and reality. That’s the impression one can get by looking at responses to the FCC’s decision, which was handed down last Friday.

In this part we wish to tackle one particular pattern we’ve come across and may come across again in days or weeks to come.

Team UPC didn’t take the decision too well and ad hominem tactics are adopted again, as we’ll note in future parts. It’s not even the first time.

“The UPC itself was a blow to Europe. Team UPC had to lie and cheat a lot to get it as far as it has gotten.”Despite much evidence that European businesses do not want the UPC (lawyers have lied on ‘their behalf’) days ago we saw this is a Big Lie from LexisNexis (in an upcoming ‘webinar’): “How the Collapse of the UPC is a damaging blow to Europe”

No. It is not. The UPC itself was a blow to Europe. Team UPC had to lie and cheat a lot to get it as far as it has gotten. Then, judges (or Justices) assessed the evidence of the lying and cheating, whereupon they did the right thing.

LexisNexis may be a bunch of self-serving liars, but as noted in past years "Reed Tech (a LexisNexis company) ... is the government contractor that carries out the printing of US patents."

It’s just part of the patent ‘printing machine’, even literally.

But that’s just where the ‘fun’ begins…

Move over, LexisNexis, Christian Liedtke over at Watchtroll does necrophilia. “Death at a Funeral – or Birth? Why the German Court’s Decision on the UPC May Not be the End” (say what?)

This was the headline.

Wishful thinking again.

“Team UPC spins the death of something it has long lobbied for as a good thing.”Christian Liedtke says “the coffin to be far from shut. Instead, the UPC may have been given a second lease on life…”

Oh…

OK.

So when something dies it is actually “given a second lease on life…”

Interesting spin you got there, Mr. Liedtke.

I see.

So when something dies it actually comes to life. What are you, a karma or zombie enthusiast?

Team UPC spins the death of something it has long lobbied for — at very great and considerable expense — as a good thing.

If it is, indeed, a “lease on life,” then why are you all bemoaning last week’s decision?

“So even the negative (to them) is suddenly a positive?”After all… “lease on life,” you know?

That’s like a mother saying, “good riddance to my dead kid” because “now I’m going to get pregnant again…”

But Mr. Liedtke wasn’t alone. Oh no…

Charlotte Kilpatrick has just just published “UPC: defeat could be opportunity for growth” (so now they’ll go about flaunting and bragging about how their defeat is actually a Good Thing™).

“Recent setbacks from the UK and Germany could be a starting point for needed reforms, according to in-house counsel,” the summary says.

So even the negative (to them) is suddenly a positive? Make up your minds, will you?

That’s like a failing presidential candidate saying, “it is good that I lost because I learned some lessons and next time I can do better…”

Or, “it’s good at I failed at the sporting event because it gives me something to strive for.”

“Team UPC, please do not bring booze to the funeral. You’re obviously too drunk already.”This infantile kind of thinking is just so typical of Team UPC.

To quote these delusional ones: “Those who have gone into full mourning over this decision, calling it the death knell of the UPC, may find the coffin to be far from shut. Instead, the UPC may have been given a second lease on life, and those with substantive concerns about the UPC may end up wearing the black ribbon in the long run.”

What? No further comment needed. Team UPC, please do not bring booze to the funeral. You’re obviously too drunk already.

LOT Network is a One-Man (Millionaire’s) Operation and Why This Should Alarm You

Posted in Deception, Microsoft, OIN, Patents at 7:55 am by Dr. Roy Schestowitz

Promoting and protecting software patents while pretending to protect people (from patent trolls)

Ken Seddon
From LOT Network’s latest IRS filing [PDF]. The self-appointed chief pays himself a salary of over half a million dollars, tax exempted, for 45 hours of work. All this by collecting membership fees for his glorified ‘patent club’.

LOT Network outline
Swinging from big profits to big losses and then no visibility anymore. They surface again in the media to tell us what an awesome company Microsoft is, even as purveyor of patent blackmail and backer of the world’s biggest patent trolls.

Summary: The ugly story of Open Invention Network (OIN) and LOT; today we take a closer look at LOT and highlight a pattern of ‘cross-pollination’ (people in both OIN and LOT, even at the same time)

LAST night we learned something a tad disturbing. We had heard all sorts of things about OIN and LOT Network, whose business model is similar; they are in some sense inseparable and their “charity” (or “non-profit”) status is as dubious as the Linux Foundation‘s because they’re corporate front groups.

Remember that the enemy of OIN (and LOT) isn’t the likes of Microsoft (heck, they spread the lie that “Microsoft loves Linux” now that Microsoft is a member!). The enemy of OIN is the community of developers. Real communities. Or people like us, who oppose software patents. OIN is big patent pool if not cartel protecting software patents, including Red Hat’s. They tell us those patents are “OK” and “Safe”. Need we mention that since Red Hat’s CEO became President at IBM (appointment effective next month) the company has filed yet more extortionate lawsuits against companies, using dubious software patents? Nothing is really changing, but they want to extinguish their critics. They were very giddy to see Richard Stallman go because of an online lynch mob and dishonest press (IBM-connected media — even the very same publisher — participated in this defamation a year after it had caused Linus Torvalds to be removed from his own project though he returned later).

“Remember that the enemy of OIN (and LOT) isn’t the likes of Microsoft (heck, they spread the lie that “Microsoft loves Linux” now that Microsoft is a member!). The enemy of OIN is the community of developers. Real communities. Or people like us, who oppose software patents.”When people from the community of developers “join” OIN are they signing away their autonomy to Microsoft, IBM etc. just like with CLAs? Building a large community-hostile aggregation, in effect thinking they defend themselves from patent trolls (OIN and LOT do no such thing; this is false marketing; They’re even run by trolls and oftentimes help trolls).

Look who’s running them. Look closely. Those people are opposing authentic and legitimate causes of actual activists, looking to abolish software patents.

“Now, as it turns out, based on new information, OIN and LOT Network are run by the same people or have ‘cross-pollination’ (people with E-mail addresses in both domains).”Remember that the same people run IBM and OIN’s first CEO came from IBM. Also bear in mind that IBM still lobbies against the community’s interest when it comes to patent law.

Now, as it turns out, based on new information, OIN and LOT Network are run by the same people or have ‘cross-pollination’ (people with E-mail addresses in both domains). People like Valer Mischenko. Alarm bell and warnings all over this, so we’ve ended up researching the matter.

The trigger point was the affiliation of Valer Mischenko. We don’t know if he works for OIN, LOT, and if the two are connected. All we know is that he’s still listed as working for OIN and he’s mass-mailing developers to get them to join LOT. So he’s wearing two hats. Or swapping hats.

8 years ago he still worked for NLnet and published this article with a bio that said “Before he started working with NLnet in 2007 he worked as Operations Manager and Director within several bigger and smaller ICT companies in The Netherlands and abroad.”

“LOT is connected to IAM, the patent trolls’ front group.”Then he moved to OIN. As per a page from four years ago: “Long involvement in open source and open innovation. Currently helping to build out a no-fly-zone around Linux with Open Invention Network.”

He is listed here as “Regional Director, Licensing” at OIN, noting that: “Previously he was general director of NLnet Foundation, a charity which stimulates network research and development in the domain of Internet technology. Prior to NLnet he worked as COO within several ICT companies.”

But now he has a LOT address. LOT is connected to IAM, the patent trolls’ front group. They’re proud of this. LOT has long been advocated by Microsoft circles as well… and weeks apart Microsoft joined both LOT and OIN (LOT first), whereupon it received lots of marketing/PR in return. It’s almost as though there had been a defection, with OIN’s Mirko Boehm perpetuating Microsoft lies such as “Microsoft loves Linux” (well, maybe he loves the money they offered).

LOT identifies itself as “Promotion of Business (Community Improvement, Capacity Building)” and Mischenko called it a “non-profit.”

“Hope to see you among our members soon,” he wrote to one developer. We imagine he sent it to countless others, trying to get them to sign this second and latest version of their agreement form. We can see what LOT Network gets from it. As for developers? They get virtually nothing out of it. That acts more like a waiver, like a CLA.

“That acts more like a waiver, like a CLA.”Notice how, at present (or most recently), LOT was losing millions of dollars to enrich a millionaire and oligarchs (billionaires) he fronts for. Remember where he came from (before LOT). We covered this in the past.

At first he managed to cover his humongous salary, which would make him a million bucks in less than 2 years. But in recent years he reported massive losses… (though he still netted a huge salary)

“At first he managed to cover his humongous salary, which would make him a million bucks in less than 2 years.”He then sold out to Microsoft (months later). The filing corresponds to about 10 months earlier and no more filings are available… since 2017 (that we can access anyway).

Let’s examine what they try to get developers to sign electronically (we reproduce this in full below in case they change it, which is likely if not inevitable):

THIS LOT AGREEMENT (“Agreement”) is entered into upon the undersigned LOT User’s submission of a signed copy of the completed Agreement to the LOT Administrator, and is effective as to that LOT User upon the date of such submission (the “Effective Date”), whereby such LOT User becomes a party to this Agreement on behalf of itself and its Affiliates and becomes bound by the terms and conditions. This Agreement is by and between the undersigned LOT User and all other current and future LOT Users.

NOW THEREFORE, each LOT User agrees as follows.

1. License Grant and Release
1.1. Grant of License and Release. With respect to each of its Subject Patents, and subject to the conditions and limitations of this Agreement, each Licensor hereby grants to every Licensee a present, fully vested and irrevocable (except as provided in Section 2 below):

(a) worldwide, royalty-free, non-exclusive, non-sublicensable, non-transferable (subject to the provisions of Section 2 below) license to make, have made, operate, have operated, use, sell, offer for sale, import, and otherwise distribute Products and Services at any time on or after any Transfer of the respective Subject Patent to an Assertion Entity; and

(b) release, effective immediately prior to first Transfer of the respective Subject Patent to an Assertion Entity, of any and all claims, liabilities and damages for all Infringement of the respective Subject Patent occurring prior to the date of such Transfer of the respective Subject Patent.

1.2. Waiver and Immunity. With respect to each Subject Patent of the Licensor, the License constitutes a present, fully vested and irrevocable (except as provided in Section 2 below) waiver of the right under the respective Subject Patent for any Assertion Entity to make any Patent Assertion of the respective Subject Patent against any Licensee or with respect to any Licensee’s Products and Services. The License further includes immunity following first Transfer of the respective Subject Patent to an Assertion Entity for use, reproduction, and further sale, offer for sale, and distribution of the Licensee’s Products and Services by a distributor, reseller, re-licensor or customer of the Licensee, including reproduction and distribution of authorized copies of software sold or otherwise distributed (including by license of copies) by such Licensee.

1.3. No Other Rights. Except as expressly set forth in Sections 1 and 2 no license or right under any Patents is granted by this Agreement, whether by implication, estoppel, or otherwise. For the avoidance of doubt, the Licenses do not release any claims, liabilities or damages for Infringement or otherwise restrict or limit any Patent Assertion of a Subject Patent that has not been Transferred to an Assertion Entity, including against any Licensee or with respect to any Licensee’s Products and Services.

1.4. Return of Financial Benefit. Each LOT User agrees that any payment due to or received by such LOT User or its Affiliates (a “Receiving LOT User”), after becoming a LOT User or its Affiliate, resulting from any Patent Assertion by an Assertion Entity against an entity that at the time of the Patent Assertion is a LOT User or its Affiliate (a “Paying LOT User”), to the extent that such Patent Assertion is based on any of the Receiving LOT User’s Patents that were Transferred by the Receiving LOT User to an Assertion Entity less than two (2) years prior to the Receiving LOT User becoming a LOT User or its Affiliate (and where the payment due or received is not the result of an agreement between the Receiving LOT User and the Paying LOT User), will be immediately cancelled or returned to the Paying LOT User against whom such Patent Assertion is made.

1.5. Full Force and Effect. All Licenses granted in this Agreement are intended to and shall run with the Subject Patents to which they pertain for the full duration of such Subject Patents and be binding on subsequent owners and licensees. Any transfer or grant of rights in or to a Licensor’s Subject Patent(s), whether by such Licensor or any subsequent transferee, shall be subject to the Licenses and continuing obligations of this Agreement with respect to such Subject Patent(s).

2. Assignment, Change of Control, Withdrawal and Amendment
2.1. Assignment. Subject to the provisions of Section 2.2 below and except as set forth in the next sentence, no LOT User, Licensor or Licensee or their respective Affiliates may assign this Agreement or its rights hereunder, including but not limited to by operation of law, and any attempt to do so shall be void. A LOT User may assign this Agreement to its Affiliate solely as necessary to effect a corporate reorganization of such LOT User that does not constitute a Change of Control.

2.2. Change of Control.

(a) LOT User. In the event that a LOT User undergoes a Change of Control, whether during or after its Participation Period, by an acquirer that is not and does not become a LOT User or an Affiliate of a LOT User within its Participation Period during the six (6) month period after the effective date of such Change of Control, then the LOT User and all of its Affiliates will be deemed to have withdrawn from this Agreement, effective six (6) months after the effective date of such Change of Control. Notwithstanding Section 6.1, an acquirer and its Affiliates prior to the Change of Control will not be considered to become an Affiliate of the LOT User under this Agreement merely by virtue of having acquired Control of the LOT User.

(b) Affiliate of a LOT User. If an Entity ceases to be an Affiliate of a LOT User and does not become a LOT User prior to the time it ceases to be an Affiliate, then such Entity will be deemed to have withdrawn from this Agreement, effective as of the date it ceases to be an Affiliate of the respective LOT User.

(c) Notice. In order to allow the LOT Administrator to determine a withdrawal date under this Section 2.2, the LOT User agrees to inform the LOT Administrator within thirty (30) days of a Change of Control of the LOT User of the fact of such Change of Control and its respective effective date.

2.3. Withdrawal. A LOT User may withdraw from this Agreement by sending the LOT Administrator a written announcement that declares the LOT User’s intent to withdraw and is signed and submitted by an authorized representative of the LOT User. The existence and date of each such announcement will be published on the LOT website. The LOT User’s withdrawal will be effective as to such LOT User and all of its Affiliates six (6) months after it sends the withdrawal announcement.

2.4. Scope of Rights Following Effective Date of Withdrawal.

(a) Inbound Licenses. The Licenses granted to a LOT User or its Affiliate that has or is deemed to have withdrawn will remain in effect only with respect to Subject Patents of Licensors that were Transferred to an Assertion Entity prior to the date on which such withdrawal is effective.

(b) Outbound Licenses. All Patents of a LOT User or its Affiliate that are Subject Patents as of the date on which withdrawal or deemed withdrawal is effective as to such Entity shall remain Subject Patents and will remain and continue to be licensed following withdrawal to all Licensees existing as of the date of withdrawal and to all Licensees that become an Affiliate of an existing Licensee after the date of withdrawal, subject to the terms and conditions of this Agreement, including Subject Patents Transferred to an Assertion Entity after the date on which withdrawal is effective.

2.5. Amendment. Provisions regarding amendment of this Agreement are set forth in Exhibit B, incorporated into this Agreement as if fully set forth herein.

3. Warranties
3.1. Disclaimer. EACH LICENSOR OFFERS THE PATENT LICENSES GRANTED HEREIN “AS IS” AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING ITS PATENTS.

3.2. Representations and Warranties. Notwithstanding Section 3.1, each LOT User represents and warrants that:

(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and that it has the full right and power to grant the licenses, waivers, immunities, covenants and releases set forth herein;

(b) this Agreement has been duly authorized, executed and delivered by such LOT User and is enforceable against such LOT User;

(c) it has and covenants that it will continue to have and exercise the rights necessary to cause its Affiliates to be bound by the obligations of this LOT Agreement (including the obligation to grant the Licenses with respect to the Subject Patents in accordance herewith); and

(d) it will not use or cooperate with any Financial Investors, Holding Companies, or non-Participating Business Groups for the primary purpose of circumventing its obligations under this Agreement.

4. Disclaimer of Liability
IN NO EVENT SHALL ANY LOT USER OR ANY OF ITS AFFILIATES BE LIABLE UNDER THIS AGREEMENT, OR BY VIRTUE OF GRANTING ANY LICENSES HEREUNDER, FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, OR FOR ANY OTHER PUNITIVE OR SPECIAL DAMAGES, WHETHER UNDER A THEORY OF WARRANTY, CONTRACT, NEGLIGENCE, OR OTHERWISE, EVEN IF SUCH LOT USER OR ANY OF ITS AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES PRIOR TO SUCH AN OCCURRENCE.

5. Miscellaneous

5.1. Relationship of the Parties. This Agreement does not create any relationship of agency, partnership or joint venture among the LOT Users or their Affiliates.

5.2. No Impact on Reasonable Royalty or Equitable Relief. Each LOT User and its Affiliates agree that this Agreement does not reflect a royalty that any LOT User or its Affiliate might otherwise have negotiated with respect to any Subject Patents. Each LOT User and its Affiliates further agrees that this Agreement is not intended to, and they will not argue that this Agreement is, relevant to whether an injunction is available or what would constitute a reasonable royalty or a measure of damages for Infringement of any Subject Patents in any dispute outside the scope of this Agreement.

5.3. Third Party Beneficiaries. Each LOT User and each of its Affiliates is an intended third party beneficiary of this Agreement. Except as expressly provided herein, nothing in this Agreement is intended or shall be construed to give any Entity, other than LOT Users and their Affiliates, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein.

Entire Agreement. This Agreement constitutes the entire agreement and understanding of the LOT Users and their Affiliates with respect to the subject matter hereof.

5.5. Bankruptcy. Each LOT User acknowledges and agrees that from and after the Effective Date, and notwithstanding any limitations or conditions in Section 1 or 2 that may apply, (i) this Agreement is an executory contract as that term is used in Section 365 of the United States Bankruptcy Code; (ii) the License granted by each Licensor to each Licensee under this Agreement is subject to Section 365(n) of the Bankruptcy Code; (iii) for the purposes of Section 365(n) of the Bankruptcy Code, the Subject Patents constitute “intellectual property” within the scope of Section 101 of the Bankruptcy Code; and (iv) in the event that any bankruptcy is filed by or against a Licensor, or the Licensor is adjudged bankrupt or insolvent, and the trustee in such bankruptcy rejects this Agreement, each Licensee will have the right to exercise all rights provided by Section 365(n), including but not limited to the right to retain its license rights under this Agreement and any agreement supplementary to this Agreement.

5.6. Costs. LOT Users will pay fees for ongoing costs and operation of LOT Network Inc. and the LOT Administrator in accordance with Exhibit A.

5.7. General Release Waiver. With respect to the releases granted by it in this LOT Agreement, each Licensor voluntarily and with full knowledge of its significance, expressly waives and relinquishes any and all rights they may have under any state or federal statute, rule or common law principle, in law or equity, relating to limitations on releases. SPECIFICALLY, EACH PARTY HEREBY EXPRESSLY WAIVES ANY RIGHTS IT MAY HAVE UNDER CALIFORNIA CIVIL CODE SECTION 1542 WHICH PROVIDES THAT: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

5.8. Release for LOT Administrator and LOT Network Inc. Each LOT User releases the LOT Administrator, LOT Network Inc. and their directors, representatives and successors from, and covenants not to action with respect to, any liability associated with their administration of this Agreement.

5.9. Notice. All notices and communications pursuant to this Agreement shall be in writing and signed by the Entity giving such notice and shall be deemed to have been given upon receipt or upon tender by electronic mail with a follow-on hardcopy using a priority or express courier, postage prepaid to the noticed party as follows: (a) in the case of the undersigned LOT User, to the email and mailing addresses provided on the signature page hereto, which addresses may be updated by notice from such LOT User to the LOT Administrator; and (b) in the case of the LOT Administrator, to the email and mailing addresses for the LOT Administrator as of the date of notice as specified on the LOT website.

5.10. Section Headings. The Section headings contained in this Agreement are for reference purposes only and shall not in any way control the meaning or interpretation of this Agreement.

5.11. Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of New York, without reference to its choice of law principles.

6. Definitions
6.1. “Affiliate” means, with respect to a first Entity, any Entity that directly or indirectly Controls, is Controlled by, or is under common Control with such first Entity, but only for so long as such Control exists; provided, however, that:

(a) in the event that a LOT User is or becomes Controlled by a Financial Investor, then such Financial Investor (and any Entities that (i) are Controlled by such Financial Investor, (ii) are not Affiliates of such LOT User other than because of their common Control by such Financial Investor, and (iii) do not exist for the primary purpose of attempting to avoid having Patents be subject to this Agreement) will not be considered Affiliates of such LOT User for so long as such Financial Investor remains a non-Assertion Entity; and

(b) in the event that a LOT User is or becomes Controlled by an Entity (“Holding Company”) that Controls a group of Entities that conduct substantially separate and identifiable businesses (each such Entity and its Controlled Affiliates, a “Business Group”), then such Holding Company (and any Entities that (i) are Controlled by such Holding Company, (ii) are not Affiliates of such LOT User other than because of their common Control by such Holding Company, and (iii) do not exist for the primary purpose of attempting to avoid having Patents be subject to this Agreement) will not be considered Affiliates of such LOT User for so long as such Holding Company remains a non-Assertion Entity, provided that one or more of the Business Groups that becomes a LOT User together with its Controlled Affiliates (“Participating Business Groups”) (x) owns or controls at least 10,000 active U.S. Subject Patents at the time of becoming a LOT User, and (y) has aggregate consolidated revenues, exclusive of revenue derived from Patent Assertions, measured over the full twelve (12) months preceding the date it becomes a LOT User of greater than $1 billion. Any such LOT User will confirm whether it is subject to this Section 6.1(b) upon written request from another LOT User.

6.2. “Assertion Entity” means an Entity and each one of its Affiliates if such Entity and all its Affiliates collectively derived from Patent Assertion more than half of their total consolidated gross revenue measured over the full twelve (12) months preceding a particular date (other than as a result, during such twelve (12) month period, of a damages award or settlement obtained in such period from patent infringement proceedings brought by such Entity or its Affiliates against one or more other Entities based on such other Entities’ sale or distribution of one or more infringing products or services that compete against one or more bona fide commercial products or services of such Entity or its Affiliates, provided that such Entity and all its Affiliates collectively did not derive (or were not awarded or did not otherwise obtain the right to derive pursuant to a settlement) from Patent Assertion an amount equaling more than half of their total consolidated gross revenue measured over the full twenty-four (24) months preceding the particular date). Without limiting the foregoing, the following will be counted as revenue derived by an Entity from Patent Assertion for purposes of this definition (i) royalties and other monetary compensation arising from grant of releases, licenses, covenants not to sue or other rights to Patent(s) for the primary purpose of deriving royalties or other monetary compensation under such Patent(s), where such rights are not granted in connection with Products and Services provided by such Entity or its Affiliates relating to such Patent(s) (which shall be counted as revenue at the time of receipt), (ii) monetary compensation arising from settlement of Patent Assertion (which shall be counted as revenue at the time of receipt), (iii) damages awarded arising from a Patent Assertion (which shall be counted as revenue at the time of award, even if not collected), and (iv) imputed revenue of $100,000 for each Infringement complaint filed for a Patent Assertion (which shall be counted as revenue at the time of filing). In addition, an Entity and each of its Affiliates will be deemed to be an Assertion Entity if the Entity or any of its Affiliate has, as of a particular date, a goal or plan approved by senior management or a senior executive (or under which the Entity has begun to receive revenue) to derive from Patent Assertion, either directly, or indirectly through one or more of its Affiliates, more than half of the total consolidated gross revenue of such Entity and its Affiliates collectively in any twelve (12) month period including or after that particular date.

6.3. “Change of Control” means, with respect to a first Entity:

(a) direct or indirect acquisition (except for transactions described in clause (b) below), whether in one or a series of transactions, by a second Entity or related Entities of Control of the first Entity; or

(b) a merger, consolidation or other reorganization or recapitalization of the first Entity with a second Entity or a direct or indirect subsidiary of such second Entity, provided that a result of the consummation of such merger, consolidation or other reorganization or recapitalization, whether in one or a series of related transactions, is that the holders of Control of the first Entity immediately prior to such consummation do not Control, immediately after the consummation, the Entity surviving such merger, consolidation or other reorganization or recapitalization, or its direct or indirect parent Entity. The “effective date” of a Change of Control is the date on which the relevant acquisition, merger, consolidation, reorganization or recapitalization (as applicable) occurs under applicable law.

6.4. “Control” means (i) the ownership, or the direct or indirect control, of more than fifty percent (50%) of the voting stock or other voting ownership interest of an Entity, or (ii) the sole power to elect, appoint, or cause the election or appointment of, directly or indirectly, at least a majority of the members of the board of directors (or such other governing body that exercises a similar level of control) of an Entity. The terms “Controlled” and “Controls” shall have a correlative meaning.

6.5. “Entity” means an individual, corporation, trust, partnership, joint venture, limited liability company, association, unincorporated organization, or other legal or governmental entity.

6.6. “Financial Investor” means an Entity that is not an Assertion Entity and its primary business is investing in equity securities or debt of non-Assertion Entities (examples of a Financial Investor are a venture capital firm or a private equity firm).

6.7. “Infringement” means direct or indirect infringement of a Patent.

6.8. “License” means the license rights, releases, waivers and immunities granted in Sections 1 and 2 of this Agreement, subject to the terms, conditions and limitations herein.

6.9. “Licensee” means, with respect to each Subject Patent of a Licensor: (i) each LOT User who is within its Participation Period at any time that the respective Licensor or any assignee, transferee or successor has, or after which the Licensor or any assignee, transferee or successor later obtains, the right to grant licenses, releases, waivers or immunities with respect to such Subject Patent of or within the scope granted in the License; and (ii) each Affiliate of such LOT User that is or becomes an Affiliate of the LOT User at any time during such LOT User’s Participation Period, subject to Sections 2 as applicable.

6.10. “Licensor” means a LOT User and each Entity that is, was, or becomes, an Affiliate of such LOT User during the LOT User’s Participation Period. For avoidance of doubt, each LOT User and each of its Affiliates referenced in the prior sentence shall remain a Licensor with respect to its Subject Patents, even after submission of a withdrawal announcement as set forth in Section 2.3 or Limitation Announcement as set forth in Exhibit B.

6.11. “LOT Administrator” means LOT Network Inc. or other Entity appointed by LOT Network Inc. or its successor that administers the LOT website, including receiving and publishing on the LOT website the name of Entities that submit this Agreement, withdrawal announcements (as set forth in Section 2.3), Limitation Announcements (as set forth in Exhibit B), and the associated dates of such announcements. The Entity acting as the LOT Administrator may change from time to time as determined by the Board of LOT Network Inc. or its successor and such change will be announced on the LOT website.

6.12. “LOT User” means an Entity that agrees to this Agreement by means of submission to the LOT Administrator. Once an Entity becomes a LOT User, it remains a LOT User for purposes of this Agreement.

6.13. “Participation Period” means, with respect to a particular LOT User and each of its Affiliates, the period commencing on the date such LOT User signs this Agreement and transmits it to the LOT Administrator and ending on the effective date of withdrawal or deemed withdrawal of such LOT User or its respective Affiliate (as set forth in Section 2) or applicable Limitation Date (as set forth in Exhibit B). A LOT User or its Affiliate may have more than one Participation Period, if it withdraws or is deemed to have withdrawn from the Agreement or issues a Limitation Announcement and subsequently re-enters into this Agreement, provided that a withdrawing LOT User under Section 2.3 may not re-enter this Agreement for a period of at least six (6) months after its withdrawal or issuance of a Limitation Announcement.

6.14. “Patent” means any patent, utility model, inventor certificate, or equivalent right, including but not limited to a design patent or design registration, and any application for any of the foregoing anywhere in the world, including originals, continuations, continuations-in-part, divisionals, results of reexamination, renewals, extensions, and reissues, and claims contained in such patent, inventor certificate, utility model, or equivalent.

6.15. “Patent Assertion” means either of the following assertions of rights under a Patent against another Entity: (i) asserting (including but not limited to via a written or oral demand) a claim of Infringement of such Patent for the primary purpose of deriving royalties or other monetary compensation under such Patent, or (ii) the commencement or subsequent pursuit of a claim, action or proceeding in a judicial, administrative or other governmental body, including but not limited to a court (in any country) or the U.S. International Trade Commission, based in whole or in part on a claim of Infringement of such Patent.

6.16. “Products and Services” means, with respect to an Entity, any and all products (hardware and software), technologies, components, and services, including but not limited to any software that is used, licensed or otherwise distributed (including as open source software) by or for the respective Entity, and all authorized copies of same. For purposes of the License granted to each Licensee, Products and Services also include any activities of the Licensee that, in the absence of this Agreement, would constitute inducement to infringe or contributory infringement (or infringement under any other analogous legal doctrine in the applicable jurisdiction) of the Licensors’ respective Subject Patent.

6.17. “Subject Patents” means (i) all issued Patents and pending Patent applications owned or licensable (directly or indirectly) by a Licensor at any time during its Participation Period, and (ii) all Patents that at any time issue on or claim priority (directly or indirectly) to any such Patent under (i) above for which Licensor or any assignee, transferee or successor has or later obtains the right to license, whether during or after its Participation Period, provided that the grant of a License to an applicable Licensee does not require payment of royalties or other consideration by Licensor to third parties (except for payments among Entities that form part of Licensor or to third parties for inventions made by the third parties while employed by Licensor) unless someone other than Licensor (or its assignees, transferees or successors) agrees to pay such royalties or other consideration on behalf of the applicable Licensee. If a Licensor has any interest in a Patent or an Entity that owns or controls a Patent (including the right to withhold consent for Patent Assertion of such Patent) at any time during its Participation Period, but does not have the right to grant licenses, releases, waivers and immunities of the full scope set forth in this Agreement, then such Patent will be considered a Subject Patent only to the extent Licensor has the right to grant licenses, releases, waivers or immunities within the scope set forth in this Agreement. Licensor grants such licenses, releases, waivers and immunities to the maximum extent it has the right to do so without requiring payment of royalties or other consideration to third parties as set forth above, and agrees to withhold consent for Patent Assertion by any Assertion Entity against any Licensee or with respect to any Licensee’s Products and Services to the extent it has the right to do so. Notwithstanding the foregoing, a Patent will not be considered a Subject Patent of a financial institution as defined by 18 U.S.C. § 20 solely by reason of being held by such financial institution (i) as trustee for a beneficiary that is not an Affiliate of such financial institution, or (ii) as a result of foreclosure or enforcement of a security interest in order to transfer the Patent to a third party that is not an Affiliate of such financial institution to satisfy an underlying financial obligation based on monies lent and secured by such Patent.

6.18. “Transfer” or “Transferred” to an Assertion Entity means any of the following with respect to a Subject Patent, whether during or after a Participation Period of the applicable Licensor: (i) the assignment, sale, exclusive license, or transfer, in whole or in part, of such Patent to an Assertion Entity, whether by Licensor or any subsequent transferee or exclusive licensee of the Subject Patent, or (ii) acquisition of ownership or control of the Subject Patent by an Assertion Entity (including any circumstance in which Licensor or any subsequent transferee owning or controlling the Subject Patent is or becomes an Assertion Entity or Controlled by an Assertion Entity or in which any Assertion Entity obtains any right to enforce or otherwise make Patent Assertions of the Subject Patent), with the earliest date any Entity owning or controlling such Patent is or becomes an Assertion Entity or Controlled by an Assertion Entity being deemed to be the effective date of such Transfer. For avoidance of doubt, any condition of a License based on Transfer of a Subject Patent to an Assertion Entity will be deemed satisfied at all times following the date of first Transfer of the Subject Patent to an Assertion Entity, even if the Subject Patent is subsequently transferred to a non-Assertion Entity.


A-1 Fee Schedule. The annual fee per LOT User is set forth in the following fee schedule, to be paid to LOT Network Inc. or its successor (“LOT Network”) as specified on the LOT website. An Entity that joins part way through LOT Network’s fiscal year will pay a pro-rata portion of the annual fee for that year. The pro-rata portion will be due at the time of signing.
Fee Schedule:
LOT User’s Annual Revenue LOT User’s Annual Fee
less than $5 million Free
between $5 million and $10 million Free
between $10 million and $25 million Free
between $25 million and $50 million $5,000
between $50 million and $100 million $10,000
between $100 million and $1 billion $15,000
greater than $1 billion $20,000

A-2 Updates. The Fee Schedule in Section A-1 of this Exhibit A may be updated from time to time by the Board of Directors of LOT Network in accordance with its Bylaws, and such updates shall not constitute an amendment of this Agreement. The current Fee Schedule will be posted on the LOT website by the LOT Administrator. LOT Network may waive or discount fees from time to time for particular LOT Users or for particular periods of time to attract new LOT Users or for other purposes approved by the Board of Directors of LOT Network in accordance with its Bylaws.

A-3 Failure to Pay Fees. If a LOT User fails to pay the annual membership fee due under this Exhibit A within ninety (90) days of receipt of an invoice, such delinquent LOT User and its Affiliates shall not receive the benefit of any Licenses to any Subject Patents assigned or otherwise transferred by any Licensor to any Entity that is not a LOT User or an Affiliate of a LOT User during a period of delinquency that extends from the date ninetyone (91) days after receipt of such invoice until such delinquency is cured.


B-1 Procedure. An amendment may be put to a vote under this Exhibit B only upon approval in writing of the Board of Directors of LOT Network Inc. or its successor (“Board”) in accordance with its Bylaws. The Board will determine the amendment submission procedure and the voting procedure and may publish further details on the LOT website. Unless otherwise determined by the Board, the following voting procedure will apply. Following approval of putting an amendment up for vote by the Board as set forth above, the then-current LOT Users qualified to vote will be notified of a proposed amendment via email with no follow-on hardcopy (notwithstanding Section 5.9). Such LOT Users will have 30 calendar days to vote by responding by email to the LOT Administrator at the following email address: admin@lotnet.com. If a LOT User fails to vote within the time period designated, the LOT User’s vote will not be counted. If a LOT User joins while an amendment is pending, that LOT User will be permitted to vote on the amendment that is currently pending but the time period to vote will not be extended for such LOT User.

B-2 Approval. Amendment of this Agreement requires vote in favor of the amendment by at least eighty percent (80%) of all LOT Users who timely vote and who, at the time of the vote, are within their Participation Period, have not submitted a Limitation Announcement or announcement of the LOT User’s intent to withdraw, have paid any fees due under Exhibit A, and own at least one active, issued US patent in the USPTO assignment database that is a Subject Patent. The terms of an amendment shall take effect upon the date of such approval (the “Amendment Effective Date”) which will be published on the LOT website. Notice of such approval will also be given to all LOT Users via email with no follow-on hardcopy (notwithstanding Section 5.9). Upon taking effect, such amended terms shall apply with respect to and amend this Agreement regarding any LOT User and its Affiliates who, by the end of the Publication Period, have not issued a Limitation Announcement as specified below in Sections B-3 of this Exhibit B.

B-3 Dissenting LOT User May Submit a Limitation Announcement. The terms of the amendment shall be published on the LOT website for a period of sixty (60) days after it is approved (the “Publication Period”). Any LOT User that voted against the adoption of such amendment (a “Dissenting LOT User”) may submit a written announcement signed and submitted by an authorized representative of the Dissenting LOT User to the LOT website before the end of the applicable Publication Period declaring the Dissenting LOT User’s intent to limit the scope of its participation under this Agreement to the terms in effect immediately prior to the Amendment Effective Date and to the Patents of itself and its Affiliates that are Subject Patents hereunder immediately prior to the Amendment Effective Date (“Limitation Announcement”). Any such amended terms shall not apply with respect to any LOT User and its Affiliates who, on or before the end of the applicable Publication Period, have issued a Limitation Announcement. The existence of each Limitation Announcement and the date of its submission will be published on the LOT website.

B-5 Scope of Rights Upon Limitation. The Licenses granted to and by a Dissenting LOT User and its Affiliates will be subject to the terms and conditions of this Agreement in effect immediately prior to the applicable Amendment Effective Date (“Limitation Date”). The Licenses granted to a Dissenting LOT User and its Affiliates will remain in effect after the applicable Limitation Date only with respect to Patents that are Subject Patents of Licensors as of the Limitation Date, including those Transferred to an Assertion Entity after the Limitation Date. All Licenses granted to Licensees with respect to Subject Patents of the Dissenting LOT User and its Affiliates as of the applicable Limitation Date will remain in full force and effect and continue to apply to each Licensee (including those Entities that become an Affiliate of a LOT User after the applicable Limitation Date), including with respect to Subject Patents Transferred to an Assertion Entity after the Limitation Date. For avoidance of doubt, all Patents of a Dissenting LOT User or its Affiliates that are Subject Patents as of its Limitation Date shall remain Subject Patents subject to the terms and conditions of this Agreement after such Limitation Date.

LOT is not a “techie” thing but a lawyer thing. “LOT Users will pay fees for ongoing costs and operation of LOT Network Inc. and the LOT Administrator in accordance with Exhibit A,” it says. So they’re in effect paying one person’s massive salary. What do they get in return? Pretty much nothing. Maybe their logo on a page. Only if they’re a big company that pays high membership fees anyway…

“Microsoft certainly gets its money’s worth from LOT; who would be foolish to participate in this?”They later uses these pages for marketing and PR purposes.

Funnily enough LOT promotes itself by citing articles about itself in Microsoft tabloids like ZDNet, which were happy to promote LOT and Microsoft, making false claims about patent peace just months before another Microsoft lawsuit. Microsoft certainly gets its money’s worth from LOT; who would be foolish to participate in this?

03.25.20

The Fall of the UPC – Part VII: Lies and Revisionism About the Reasons for the UPC’s Ultimate Demise (to Leave the Door Open for More Failed Attempts)

Posted in Deception, Europe, Patents at 5:49 am by Dr. Roy Schestowitz

“FAKE NEWS!!!!!!” This is how Team UPC’s so-called ‘news’ sites respond to a high court’s decision (an infantile approach because of their rejection of reality)

FCC Rejected UPC?

Summary: The media was lying in a hurry, in a coordinated effort to distort the meaning of the FCC’s decision or belittle the impact of this decision; Techrights will carefully watch and respond to these lies

THE press coverage about the death of the UPC is starting to end. Much of it came on Friday and Monday. As for tweets? Well, not many of them anymore. It’s settled anyway. The record is settled. But Team UPC is still trying to distort it and litigation firms keep lying about what happened and what will happen next. We’ll keep this series running until, inevitably, things are quiet or “mum”. It might take a while, maybe spilling onto April.

“We’ll keep this series running until, inevitably, things are quiet or “mum”.”So let’s start with some accurate coverage, coming from people who actually work in technology as opposed to litigation. Yesterday we saw the article “Double Blow To The EU’s Long-Delayed Unified Patent Court, But Supporters Unlikely To Give Up” (accurate summary). The opening paragraph says:

Remember the EU’s unitary patent plan? No surprise if you don’t — attempts to create a unitary patent system across the region have been dragging on for decades. Back in 2012, Techdirt noted that the European Parliament had finally approved the plan to set up a new Unified Patent Court (UPC) for the EU, but it still hasn’t come to fruition. Recently, the scheme has been dealt two major blows that are likely to delay it further, even if they don’t kill it off entirely.

In its current incarnation it’s dead (where death means no more attempts; they need a reboot/respawn) and there’s no guarantee that it will ever materialise. Ever.

“In its current incarnation it’s dead (where death means no more attempts; they need a reboot/respawn) and there’s no guarantee that it will ever materialise. Ever.”In a site of Team UPC, lobbyist and booster of Team UPC for a number of years, an author who already admitted the death (in Twitter at least) speaks of “UPC ‘soul searching’”. Max Walters summarises: “Lawyers across Europe say the UPC project could be open to future challenges even if the German parliament meets the required two-thirds majority” (the rest is behind a paywall).

Many, many barriers exist, including those inside the complaint. There are further complaints waiting to be submitted/filed shall the need arise.

It’s worth noting that another UPC propagandist (“JUVE Patent”) has just promoted this myth: “This formal objection can be eliminated by a new vote with a two-thirds majority. Fortunately, the Federal Constitutional Court has rejected all factual objections to the constitutional complaint as inadmissible or unfounded.”

No, it did not!

As Benjamin Henrion put it, “they read the decision as only the 2/3 majority problem…”

Well, here they lie again and JUVE keeps printing these lines.

As Shawn put it in our IRC channel, “if they don’t agree with you, change history, great tactic…”

Are they going to start repeating this lie for years to come?

“Well, here they lie again and JUVE keeps printing these lines.”Well, if they do and whenever they do we shall call out the liars.

Here’s what another UPC propagandist wrote in Twitter: “Reading German Constitutional Court decision, the UPC is not dead but is on life support. Question is whether the will exists to revive it. Right now, that’s very doubtful.”

Life support?

What does that even mean?

“When the EPO’s PR firm pays you to lie for the UPC,” I responded to them, “and advocate the UPC you call corpses “technically alive” (maintaining the lie to maintain one’s income)…”

I was referring to IAM taking money from the EPO’s PR firm to promote the UPC worldwide. It’s no secret that EPO money corrupts the media and Team UPC relies heavily on bribed and/or infiltrated media. This is a problem we touched on in previous parts. It’s like a separate, albeit big, issue. There are several aspects to it, e.g. media taking bribes, media taken over by law firms, and media selectively quoting only particular law firms with a particular agenda. Bristows LLP does this a lot. Gregory Bacon (Bristows) responded to the decision on Friday with “German Constitutional Court upholds UPC complaint”

This title is correct, for a change (they typically lie a lot), but the rest is a lie. His colleague Brian Cordery (Bristows) was meanwhile pushing injunction agenda in the UK by reprinting for Katie Cambrook and Ben Millson. They hope for and want lots of injunctions (embargoes) in their aggressive UPC. So they don’t care about underlying facts.

“There are several aspects to it, e.g. media taking bribes, media taken over by law firms, and media selectively quoting only particular law firms with a particular agenda.”As Benjamin Henrion put is on the day: “There will be calls to mod the German Constitution to make it UPC compatible “Any conferral of judicial functions on international courts modifies this comprehensive allocation of jurisdiction and, is an amendment of the Constitution in substantive terms” https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2020/bvg20-020.html …”

Let’s change the dog to match the tail?

Over at WIPR (World Intellectual Property Review) there was yet more of the typical lying or embellishments. It is a marketing/spam/PR site, which once upon a time did actual journalism (e.g. about EPO abuses). Is it still a news site? Consider this as a new example.

How is this “news” and not an ad?

WIPR’s business model is bare and naked for all to see.

It’s neither news nor information.

Here’s their opening tweet from Friday: “NEWSFLASH: German court deals hammer blow to UPC. The German Federal Constitutional Court has upheld the constitutional complaint filed against the country’s Unified Patent Court legislation.”

True, and here’s the corresponding article. But watch the content. What is this, a joke?

Henrion quoted from there: “Gordon Harris, global co-head of IP at Gowling WLG, says that it is almost “inconceivable” that this will go back before the German parliament until that renegotiation process is complete.”

“Over at WIPR (World Intellectual Property Review) there was yet more of the typical lying or embellishments.”“No kidding,” Henrion remarked.

Misframing the issue to add a loaded statement? “Team UPC is a pathetic bunch of self-important liars,” I told him. How long can the lies go on for?

Another shameless lie, a Big lie, was quoted here based on another WIPR article: “Yet, that does not change anything about the fact that most of industry is rightly in favour of the system even without the UK, and time for improvements isn’t a bad thing, is it?”

“Time to prepare the next phase,” Henrion responded, suggesting “thousand of companies [rally] against the UPC…”

Will these publishers pay attention? They almost never quote actual companies as opposed to law firms which claim to speak for companies (and deliberately misrepresent these).

They’re paid to lie. Lying is their occupation.

Here’s what WIPR tweeted on the above article: “UPC analysis: is a UK ‘litigation hub’ on the horizon? Today’s decision from Germany may herald the end of the Unified Patent Court, but UK litigators are looking forward to the opportunities.”

“Sooner or later someone from the EPO will say something and one can be pretty certain this will be a lie, supported only by the above publications which lie deliberately.”Litigators. That’s it.

Because the UK has nothing but litigators in it, right? No actual companies. Just lawyers!

Lobbying for the UK to become a haven for patent trolls and failing to see how evil that is, sites like WIPR actively work to undermine real British companies.

António Campinos and Benoît Battistelli have still not said a thing, nor has the EPO. Total silence.

Sooner or later someone from the EPO will say something and one can be pretty certain this will be a lie, supported only by the above publications which lie deliberately.

Microsoft Continues to Attack and Steal From the Open Source/Free Software Communities

Posted in Deception, Free/Libre Software, Microsoft at 12:42 am by Dr. Roy Schestowitz

Law-breakers won’t change their ways; they only optimise their PR strategy (and bribe more of the media to play along)

Microsoft Loved Linux.

Summary: Microsoft cannot be trusted and there’s no “new Microsoft,” as another fairly new story serves to show

“Shocked, Roy!”

So said a reader of ours, who used to work for Microsoft.

“Microsoft copies/steals lerna,” our reader summarised, pointing to this archived copy/snapshot of a page that’s now gone (although the Web site is still there).

We are gratified to see that more people from inside Microsoft are starting to see just how evil the company really us. I know of several such people, some of whom I speak to regularly. They have inside information and leads/tips.

It will be good for Techrights to make a copy anyone can find by searching. The original was removed. Sometimes Microsoft bribes or threatens to make this happen (e.g. threatening through one’s boss/customers). We covered examples of that in past years.

With the original deleted we think it would only be fair to reproduce the full message (the emphasis below is ours for the “tl;dr” crowd):

I think it’s time I publicly shared about how Microsoft stole my code and then spit on it.

I’d been waiting for them to do something about it, but that is clearly never happening.

When we were working on Babel 6, one of the big changes was to split everything up in to nice little plugin packages. However, this created a need to manage dozens of packages. Thus @lernajs was born
I picked up Lerna a little while later and focused on making it work well for design systems. I rewrote it like 5 times to try and get the architecture right.
Lerna then started getting picked up by others who also contributed back and added features. I enjoyed watching it grow and so I started looking out for users.
One day I came across a new design system from a team at Microsoft. I saw that it was made up of lots of small packages. I was excited and wondered “ooh is MS using Lerna?”
It turns out, no they were not. They were using this other thing called “Rush”. I hadn’t heard of it, but I was interested in seeing how it differed from Lerna.
I found the repo and started exploring. The first thing I noticed was how familiar all the code was. I could navigate the file structure very easily. I realised that it was almost a mirror of Lerna’s code base.
Files and directories were named the same things, it had many of the same core functions with code that I distinctly remembered writing.
But no big deal right? It must be a fork. I was actually flattered at first. So I went back in the git history.
I got all the way back to the first commit, and looked at the date. Turns out Rush was created a couple weeks after Lerna was announced.
I continued working through the commit history and looked at commits that added features, it all felt so familiar and now I was getting suspicious.
Comparing dates of commits, it looked like Rush kept copying changes from Lerna days after they were made. Rewritten using this weird event system they added.
It left a bad taste in my mouth, I could tell this was my code. I looked at the license, no mention. I looked at the readme… Oh wait
In the readme they acknowledge the fact that there are “other solutions” and say that they are bad. No mention of the fact that Rush was taken directly from one of these bad other solutions.
You know if it were anyone else, I would have been mildly annoyed and ignored it. But Microsoft is a multi billion dollar corporation. If they are going to steal code without crediting the original author I’m gonna be pissed.
So I reached out to people I knew at Microsoft. This was probably a year ago now. They were shocked and apologized. But since then nothing has happened.
Oh wait yeah, something did happen. The commit history of Rush was messed with and a lot of the code was moved around, functions renamed, rewritten. It still feels familiar, but it’s more scrambled.
Instead of just updating a license or even just adding a footnote, they went through all that trouble.
Anyways, it’s really annoyed me to listen to all these people give Microsoft free good press about open source when clearly their product org is still happy to be dicks to open source communities
I don’t trust Microsoft (or Google or Facebook or Amazon) to be good shepherds of open source communities
.

Just because we’ve made it impossible to compete with their old closed source stacks doesn’t mean they’ll act in the best interest of open source
And just because there are great people at Microsoft who love open source and want to do the right thing does not mean that they’ll be able to stop Microsoft from doing shitty things when there’s money involved.
I know plenty of people at big corporations who want to change things but can’t because millions of dollars are in the way.
A few years back we were able to petition GitHub to start improving the tools the offered to open source maintainers.

later on at a @maintainerati event, GitHub acknowledged that this letter had a huge impact on how they worked with open source communities
Imagine a couple hundred people signing a letter to try and change things at Microsoft/Google/Facebook and it actually working. These companies deal with stuff like that on a daily basis and it doesn’t make them trip up for even a second
The consolidation of our infrastructure is dangerous. Having lots of small companies or even medium sized corporations forces them to work together without much effort which prevents any one of them from ever totally fucking us over
The tech industry has so many monopolies right now. Building more everyday. It’s only going to hurt consumers more and more. And when it comes to infrastructure, we’re going to be those fucked over consumers
If you trust a handful of corporations with your entire toolchain and expect them not to fuck you over I’ve got a bridge to sell you

As recently as this year we wrote about another such example. People, watch out. The warnings are there.

03.24.20

If We Weren’t Silencing Founders, Critics and People We Just Don’t Like

Posted in Deception, Free/Libre Software, GNU/Linux at 1:22 pm by Guest Editorial Team

Article by figosdev

A crisis

Summary: “In the long run, history is rarely very kind to tyrants, especially the ones who did little more than lie to people and demand things that served no real purpose.”

I don’t suffer under the illusion that everybody has a right to your attention span. In fact I’m absolutely in favour of you having all sorts of tools for ignoring people you don’t like, where such tools are practical. They aren’t practical when it comes to working in a team, and they can’t (and shouldn’t) create a world where everybody hears exactly what they want all of the time.

“A world where everybody hears exactly what they want, all the time, would be like a world full of only children.”I’m starting out with a side point or two, sort of as a disclaimer, but a world where everybody hears exactly what they want would be an emotionally and psychologically stunting world to live in. Although population growth will likely prove to be a greater concern, people have long argued that having an only child will rob them of many opportunities to grow and learn to get along with other people in their formative years. A world where everybody hears exactly what they want, all the time, would be like a world full of only children. It would be like a world full of Donalds.

In the future, if — and likely when it becomes crucial for people to have only one child or fewer, we don’t want to compound that with a world where everybody walks around with augmented earplugs and augmented VR headsets, immersed in a narcissist’s dreamworld. Those people will never grow. We are already living that way now, to some degree — having our reality constantly mediated by 5 (until recently, 6) corporations that own 90% of the media. The dreamworld we are constantly tied into is the dreamworld of whatever these corporate assholes want us to feed from. We can all help to build the pyramids for these CEOs and “extraordinary” middle managers.

Still it’s precisely because of those media companies, along with the simple fact that it’s our right — that I’m in favour of you having all sorts of tools to mediate the media on your own behalf; to decide how much control or influence you do and don’t let them have over you.

“Plenty of people are aware of the fact that “content” moderation itself is out of balance, that our bastions of “freedom” and once at-least-superficially-grassroots activism are becoming more corporate, and for that sort of takeover to work our “activism” needs to be moderated just like everything else owned by media monopolies.”What I’m against is you taking too much control on “behalf” of others. Giving that power to the sort of people who would want very much of it is a recipe for more than disaster, but for a world where people are more often controlled, misled and lied to. We’ve heard the excuses, and we’ve witnessed the results. And while some of us made predictions along these lines (and hoped to be mistaken) there are more and more people who know what we’re talking about now. We see the real world effects, versus the alleged benefits of this sort of control.

It’s really beside the point to say that this sort of control always existed; the problem isn’t that some people are moderators, the problem is that we do better with everything in moderation — including moderation. Plenty of people are aware of the fact that “content” moderation itself is out of balance, that our bastions of “freedom” and once at-least-superficially-grassroots activism are becoming more corporate, and for that sort of takeover to work our “activism” needs to be moderated just like everything else owned by media monopolies.

“It’s the job of every propaganda marshal to make everything bad sound like something good — and everything good sound like something bad: Censorship is good, unfettered speech is a plague, wasn’t it always this way?”Monopolies and grassroots do not mix — grassroots means we all make our decisions, monopoly means those in power make the decisions. And those talking about “consequences” are pulling a fast one, because in many instances they really mean “consequences” even for us making the right decisions — the ones that favour people over monopolies. It’s the job of every propaganda marshal to make everything bad sound like something good — and everything good sound like something bad: Censorship is good, unfettered speech is a plague, wasn’t it always this way?

Well, no. But it typically is that way, when things are very, very wrong.

So next they say it isn’t censorship, but we know they’re just redefining censorship to exclude their own acts — that’s convenient. Then they claim ownership of the communities they are put in charge of — before, it was our community collectively. Now, it is less ours, because a “community leader” or “volunteer” comes in to decide who gets to keep their community and who is excluded in the name of inclusion. You start with the most obvious annoyances first, and build a rapport over it. This isn’t censorship, it isn’t restructuring free, grassroots association — this is “community building,” you say.

But we know it isn’t really about the community you think you own, because you don’t just drive people out of the community. You also penalise people for simply associating with the people you’ve driven out. And that’s exactly the moment when you’ve built a cult, by the way. A community can only control what happens inside the community.

“…it is about selling off communities and about changes in ownership — ownership of people, their associations, and their spare time.”A reasonable amount of “control” is not a prescription to be forced into people 3 times a day, but only in situations where it is absolutely needed. Moving from exception to rule is dismissed as “it was always this way,” but moving from exception to rule actually proves that it wasn’t. It’s much closer to a 180 degree turnaround in the way things are done. And it’s no accident — because again, it is about selling off communities and about changes in ownership — ownership of people, their associations, and their spare time. Which is a nice way of saying “indentured servitude.”

A community takes charge of its own events when it has no other means of moving forward, but communities don’t lean on heavy campaigns of propaganda, trying to control everyone’s thinking and trying to control what people inside the community do, even when they are outside its borders.

Once a community lays claim to things that happen on the outside, they have reached a cult status. We’ve known for years, it’s public knowledge that these cult tactics are used in corporations — Apple, with their extreme levels of secrecy (beyond simple trade secrets) to the point of absurdity (we’ve talked about how that makes it easier to own and control the tech press), Google with their surveillance of workers when not on the campus, and Microsoft, with their heavy-handed harassment of critics. All of these tactics are used by cults, and increasingly these cult tactics are being used by so-called (former) “communities.”

“So I advise everyone to consider relabeling “apathy” altogether. Call it “despair” instead.”But all of this has already been said, and none of this is the point of this article. The reason these things are worth repeating, is because all of these things are connected to, relevant to the actual point — which is the apathy we find everyday in the world around us. Why do so few people care about the things that matter most?

This is my theory about that: a lot more people care than we realise.

We wouldn’t know — because when somebody does care, they are frequently made unwelcome. They are smeared by these cults, and they are kicked out of their communities. Straw men are trotted out like thought militias, to find every possible reason to minimise, dismiss and distort the critiques, complaints and even the solutions proposed even (and especially) by people we have long respected.

“Because we are kicking out and silencing the very people who would inspire them, the very people they would understand and relate to.”But many of these people were respected for sticking their neck out, for their unconventional thinking, for being unafraid of the “consequences” of being unconventional — or for not suffering to bend over backwards to please unreasonable and demanding (narcissistic, controlling) people.

If this really is a campaign of silence like we suggest, then you may have a whole world of people who are waiting for a sign — waiting for a leader — waiting for the inspiration to be better than they are. And it’s a shame that not everybody feels they have, or even does have it in them to be the leader or the inspiration that they want to see in the world.

But the truth is that most people do not stick their neck out. By definition — most people are not unconventional. And many who do have the dedication to a cause, necessary to become that person, are exactly the sort of person we keep kicking out of the little cults we used to call “home.”

So everyone we think of as apathetic, are they really? Or are they simply missing the catalyst that would drive them to be part of the global efforts we need to stand against hegemony? We’ve taken away — stifled, worked to eliminate the very thing that would drive them to do more.

So I advise everyone to consider relabeling “apathy” altogether. Call it “despair” instead. Why do so many people have it? Because we are kicking out and silencing the very people who would inspire them, the very people they would understand and relate to.

“…you can’t moderate everything all the time, because if you do, then you create a dictatorship.”You can run your community however you want, really. But you can’t run people’s lives everywhere they go, and call yourself a community. You can’t split up families and tell people who they’re allowed to be friends with. And you can’t moderate everything all the time, because if you do, then you create a dictatorship.

There isn’t any real way around this. If you do what a dictatorship does, then you are a dictatorship. No place on earth was a dictatorship from day one; dictatorships are established as people gain more control over every action of the people underneath them. So it’s worth pointing out that all dictatorships started out as non-dictatorships. The fact that what you call a “community” actually used to be one is irrelevant — you aren’t running it like one anymore, so it no longer is one.

People aren’t apathetic, they’re stifled. And to the so-called “community manager” corporate shills doing this — it’s your attitude, your excuses, and your straw men and dishonest attacks that are stifling everybody who stays under your thumb. They know they won’t be allowed to lead, won’t be allowed to speak freely, won’t be allowed to choose their own friends, without you trying to punish them and steal their work with your lying. You’ve taken ownership of all of that “on their behalf.”

“People aren’t apathetic, they’re stifled. And to the so-called “community manager” corporate shills doing this — it’s your attitude, your excuses, and your straw men and dishonest attacks that are stifling everybody who stays under your thumb.”Some of them do believe you, when you say it’s for their own good. But even if they don’t, they won’t show it. So how would we know?

We call that apathy, but I’m beginning to doubt it. Once there are enough people who stand against that, once there are enough people to build something stronger than the Great Big Lie you perpetrate, gradually more and more people care again — more and more people stand up, and shed this so-called “apathy” you worked to instill in them.

History shows this in many instances, but everytime a new regime crops up, it seems like the worst one ever — and the resulting apathy appears more complete than ever before.

You’re not stopping them, not ultimately. Eventually people will lead them out of this, and you’re only slowing them down for a time.

“…communities take longer to build than they take for you to destroy them.”In the long run, history is rarely very kind to tyrants, especially the ones who did little more than lie to people and demand things that served no real purpose. There’s always a reason given, of course! And it’s generally based on some kernel of truth to make it easier to believe. We read these old stories, and tut and say that we’re too wise to let that sort of thing happen on our watch, and then someone like you comes along.

Grab your accolades, while you can. People who need real progress, not the mere trappings, will eventually get wise to it and put you behind them. Some might even say that’s already started — but both you and I know that you’ve got a while yet. Another historical fact, one of the few on your side, actually — is that communities take longer to build than they take for you to destroy them. So enjoy!

Licence: Creative Commons CC0 1.0 (public domain)

The Fall of the UPC – Part VI: Drowning in Material

Posted in Deception, Europe, Patents at 10:49 am by Dr. Roy Schestowitz

Drowning

Summary: We’re starting to see few good reports on the subject of UPC being rejected by the constitutional court of Germany; we also have a rapidly-growing ‘buffer’ of rather blatant examples of disinformation (which we’ll tackle as best we can)

THIS week has been hectic. I work from home. I do have more time in my hands, but the time is spent doing a variety of things (work and gardening) and news feeds are full of UPC reports such as those typical self-promotional lies from law firms (sites like Lexology), drowning out actual journalism from the likes of Kieren McCarthy (The Register). Good to see him still habitually covering the affairs of the European Patent Office (EPO).

“They’ll be back for more (a fourth time) with new lies and slogans.”At the moment we have a pile of drafts with links and information. These will definitely be expanded and eventually published, but we don’t know when. Hopefully on or before the weekend.

“We’re devoted to setting the record straight based on facts, not litigation profits.”As FFII correctly points out, Team UPC has not totally given up. They’ll be back for more (a fourth time) with new lies and slogans. The publishers that support them (and are sometimes funded by them) perish however; prominent voices of Team UPC moreover leave and retire. Can they build much momentum again? We doubt it, but time will tell…

We’re ready. Bring it on.

But UPC(A) as we know it is dead. Dead, dead, dead. Those who claim otherwise may be braindead. We’ll mention some if not most of them in the next few parts of this long series. We’re devoted to setting the record straight based on facts, not litigation profits. Our track record (getting things right regarding the UPC) speaks for itself.

03.23.20

The Fall of the UPC – Part V: Pretending That Opponents of the Unitary Patent Simply Don’t Exist

Posted in Deception, Europe, Patents at 9:28 am by Dr. Roy Schestowitz

Even if that works against 99% of the people out there

Kluwer Patent Blog
Kluwer Patent Blog right now. Where are UPC critics? 4 articles in 3 days, but only from lawyers/attorneys.

Summary: It’s difficult if not totally impossible to find articles from impartial journalists — let alone from actual scientists — about the failure of the Unitary Patent and UPC Agreement (UPCA)

WE have long complained about bias in media which covers patents, especially UPC matters. It’s all captured. It’s not even media but self-serving lobbying disguised as information.

Enter Kluwer Patent Blog.

Classic.

Stay classy, Kluwer Patent Blog…

Who runs Kluwer Patent Blog? Look at the sidebar.

Innovators?

“It’s a coup. Germany’s Justices saw that, but they’ve put it more politely in their written decision.”No, thank you.

Kluwer Litigators Blog would be a suitable blog title.

Nevertheless, there’s at least one person at Kluwer Patent Blog who we generally trust. It’s Thorsten Bausch (Hoffmann Eitle). Even EPO examiners trust him, for he defended Judge Corcoran and repeatedly criticised EPO management. Here’s one EPO insider citing his initial blog post which spoke about the FCC’s decision, saying that “this decision also means that at least the FCC will most likely not establish unsurmountable hurdles against the establishment of the UPCA. Negotiations about the future shape of the UPCA can therefore be started or resumed without a further sword of Damocles hanging above the negotiators’ heads.”

Notice the first comment from Jan Verbist: “The other deeper legal problems raised by Stjerna were not addressed.

“So the other problems are still there.”

Lots more in there. We don’t have the time needed to comment on comments or even every single article (there will be lots more in days, weeks if not months to come).

Stjerna and Bausch aren’t the only Germans to speak out against the whole UPC ‘conspiracy’ (remember that Stjerna used to work for one of the most vocal UPC booster). One German (Axel H. Horns‏), citing the decision in German, tweeted: “German Constitutional Court kills #UPC die do formal reasons (Unmatched 2/3 quorum in German Bundestag)”

It’s a coup. Germany’s Justices saw that, but they’ve put it more politely in their written decision. This politeness is now being exploited. As noted here, UPC judges: “b) The constitutional identity of the Basic Law was also violated due to the insufficient legal status of the judges. There is no legal basis for their selection and appointment, nor for the authorization to intervene in fundamental rights through judicial activity.”

Fellow Germans, such as Alexander Esslinger on Twitter, said that the “German Constitutional Court declares law for accession of Germany of the #UPC unconstitutional…”

“Justices at the FCC show that law can prevail sometimes,” I told him, “even if belatedly (years late)…”

He agreed.

Going back to Bausch, last night he published this follow-up. “By now,” he says, “the decision by the Federal Constitutional Court (FCC) voiding the German law approving the ratification of the UPC Agreement has gone viral in the patent world, though fortunately not pandemic. Most of the usual suspects have already taken position for one side or the other, so I thought I might likewise throw my five cents in. [...] The decisions of the FCC on the four constitutional complaints relating to insufficient legal protection against decisions of the Boards of Appeal, which is closely related to the question whether the Boards of Appeal are (independent) courts, may now be awaited with even more tension.”

Florian Müller, another German, tweeted that the “Federal Constitutional Court nullifies ratification of Unified Patent Court Agreement by German legislature, holds that it amends Basic Law (Germany’s de facto constitution) by conferring judicial authority on international body => high quorum => not met.”

The current UPC (or UPCA) is dead and future attempts at it probably are too. There are several barriers that haven’t yet been looked at and further ones that can be submitted.

Watch the rubbish from JUVE, a German publication that became utter trash in recent years, merely a shameless vehicle of UPC lies and propaganda; as noted here, it said: “The Bundestag can now save the situation by voting on the Act again with a 2/3 majority. Organising a quorum and a two-third majority in the context of Coronavirus will be a major challenge.”

Even without it, doing a ‘secret’ vote at 1:30AM or repeating the same shambolic act with more people present would do nothing to redeem the UPCA from other arguments against it. They focus only on the principal reason for acceptance of the complaint as if the rest do not exist. The Justices didn’t even need to look into these. So the other complaints remain and there may be further ones (if necessary). One UPC booster said: “However, whether there is appetite – given the current other pressing issues and impact of Brexit – remains to be seen. There also seems to be room for further attacks, which the Ct did not have to decide upon: https://twitter.com/UPCtracker/status/1240929583433728000?s=20 …”

An “appetite”?

Whose appetite?

“The other complaints might cause more breathing problems to the patent community,” Benjamin Henrion noted in response to Axel H. Horns‏. He was ready submit an additional one. And based on very strong grounds.

Let’s face it.

The UPC is dead. For at least several more years it won’t be progressing in any shape or form. Let’s work to fix EPO in the meantime, if possible. There’s not much going on, except perhaps the lock-downs, in the meantime. We need to stop Campinos harassing the judges to permit illegal patents and the nepotism too deserves broader attention. German journalists say they won’t cover that because of Coronavirus.

As Henrion said: “UPC in Germany: and don’t forget the other 4 complaint against the EPO construction not respecting the rule of law, they might cause more breathing problems to the patent establishment…”

It seems rather clear that a lot of Germans who aren’t part of the ‘conspiracy’ aren’t happy with the actions of Team UPC. Müller did a whole article about it, noting that “[s]ix years ago, a broad industry coalition warned against the risks of the UPC turning Europe into a trolls’ paradise.” [via]

He’s quoting Team UPC talking points, then adding:

In addition to those reactions to yesterday’s ruling, let’s not forget that the UPC’s Rules of Procedure have previously been–and without a doubt will again be–a subject of debate. Six years ago, a broad industry coalition warned against the risks of the UPC turning Europe into a trolls’ paradise.

In that context, access to injunctive relief is the most important issue–as it is in the German patent reform debate. Earlier this week, the Federation of German Industries (BDI)–the largest industry association in Europe–was forced to retract a submission (particularly on injunctive relief) that the Federal Ministry of Justice and Consumer Protection had already published on its website, as the statement misleadingly suggested that large parts of the German economy backed a permissive approach to patent injunctions. This setback for patent enforcement extremists proved that the companies advocating–as did the aforementioned UPC Industry Coalition–a more balanced patent system are ever more influential. There’s a strong connection between a future “UPC 2.0″ effort and the ongoing process for a reform of Germany’s Patent Act: whatever comes out of the national legislative process will inform–if not dictate–the position the German government will have to take when the UPC Agreement is renegotiated. The stakes could hardly be higher, and a growing number of stakeholders are perfectly aware of this while some others are still clueless as to what it takes to influence patent legislation.

Bausch’s articles on the matter were OK, almost outnumbered but not outclassed by Team UPC. Thomas Musmann (Rospatt Osten Pross) or Hetti Hilge/Dr. Simon Klopschinski (whichever), for instance, wrote about it (it’s in Twitter too, observed by EPO insiders) and there’s one piece by “Kluwer Patent blogger” (maybe Bristows again), citing EPLIT, Wouter Pors et al.

So did IP Kat, where Anastasiia Kyrylenko says “Bird & Bird is also closely monitoring major IP conferences and provides you with an updated information on their status.”

Notice how Wouter Pors and Bird & Bird sort of vanished in recent years. The UPC complainant, who used to work for them, must know some of their darker secrets. It’s worth noting that in so-called ‘diverse’ posts there are conspicuously missing views and opinions. Nobody among the UPC critics is cited, quoted or even mentioned in Kluwer Patent Blog, a de facto front group of the litigation zealots. 4 articles, all of them from the patent ‘industry’ and 2 of them from just a megaphone of patent trolls’ legal representatives.

“It’s worth noting that in so-called ‘diverse’ posts there are conspicuously missing views and opinions.”EPO insiders are seeing these and the corresponding tweet mentions Bausch by name, saying “Mixed reactions to ruling German Federal Constitutional Court in case Unified Patent Court…”

The word “positive” comes from Stolmár & Partner IP, which said: “where does this leave the UPC? Actually, not in a bad position. (…) Of course, with the current corona crisis ongoing, the UPCA won’t be the top priority for some months to come. In addition, one question remains: will the other member states still go forward with the UPC, despite UK having withdrawn from the project? But overall, we take this decision rather positively.”

So they seem to imply the decision is positive… because it’s helping the UPC?

Where are the people claiming that UPC is a bad thing? They represent perhaps 99% of Europe’s population, yet they’re muted.

« Previous entries Next Page » Next Page »

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 Channels: Come and chat with us in real time

New to This Site? Here Are Some Introductory Resources

No

Mono

ODF

Samba logo






We support

End software patents

GPLv3

GNU project

BLAG

EFF bloggers

Comcast is Blocktastic? SavetheInternet.com



Recent Posts